6th Circuit Again Upholds ACA Accommodation For Religious Non-Profits

The U.S 6th Circuit Court of Appeals today, deciding a case that had been remanded to it (see prior posting) by the Supreme Court after that Court's Hobby Lobby decision, reaffirmed its earlier decision upholding against a RFRA challenge the Obama administration's Affordable Care Act accommodation for religious non-profits that object to furnishing their employees insurance coverage for contraceptives.  In Michigan Catholic Conference v. Burwell, (6th Cir., Aug. 21, 2015), the 6th Circuit said in part:

Despite our attempts to describe how the accommodation actually works, it is perhaps inevitable that some Plaintiffs will still believe that they are morally complicit in sin, by being a part of a system that provides access to contraceptives.... However, it is not our role to determine a party’s moral complicity; we do not question here Plaintiffs’ “desire not to participate in the provision of contraception.” ... Our role is a more limited one: to determine whether, as a legal matter, the regulation represents a substantial burden to Plaintiffs’ rights under RFRA. That requires us to determine how the law works and what it asks of various actors. On this point, as we held before, “[t]he government’s imposition of an independent obligation on a third party does not impose a substantial burden on the appellants’exercise of religion.”

[Thanks to How Appealing for the lead.]

2nd Circuit Upholds ACA Contraceptive Mandate Accommodation For Religious Non-Profits

Yesterday the U.S. 2nd Circuit Court of Appeals joined six other Circuits in upholding the Obama Administration’s accommodation for religious non-profits that object to the requirement under the Affordable Care Act to furnish their employees health insurance that includes contraceptive coverage.  In Catholic Health Care System v. Burwell, (2d Cir., Aug. 7, 2015), the court rejected plaintiffs’ RFRA challenges, holding that it must apply an objective test in deciding whether a “substantial burden” has been place on plaintiffs’ religious exercise.  It is not enough that plaintiffs sincerely believe that a substantial burden has been imposed. It is up to the court to determine the magnitude of the burden.  The court said in part:

Plaintiffs ... argue that the objectively insubstantial burden of filing either the opt-out form or the letter to HHS is substantial because it renders them complicit in bringing about consequences forbidden by their religion, namely the provision of contraceptive coverage by the government and third parties. Although third parties ultimately bear the burden of providing contraceptive coverage, Plaintiffs contend that their participation is essential to this coverage…..

When third parties step in and provide contraceptive coverage after Plaintiffs opt out, they do so not because Plaintiffs have opted out, but rather because federal law requires or incentivizes them to provide such coverage. The accommodation functions not as a “trigger,” but rather as a means of identifying and exempting those employers with religious objections. Once Plaintiffs indicate their desire to have no involvement in the provision of contraceptive coverage, the government steps in and acts to ensure contraceptive coverage without any participation by Plaintiffs. Thus, Plaintiffs’ decision to opt out is not the cause of the ultimate 3 contraceptive coverage; rather this coverage happens in spite of them....

Plaintiffs may certainly object to this subsequent action by the government and third parties based on their sincere religious beliefs, and we reiterate that we do not doubt the sincerity or rationality of Plaintiffs’ beliefs. But just because Plaintiffs feel complicit in these third party actions does not mean that the regulations impose a “burden” on their religious practice, much less a burden that is “substantial” under RFRA. While a plaintiff’s “religious views may not accept [the] distinction between individual and governmental conduct,” the law does.

New York Times reports on the decision.

Wheaton College Ends Student Health Insurance In Response To Contraceptive Coverage Rules

Chicago Tribune reported yesterday that Wheaton College has made a last-minute decision to stop offering its students health insurance policies in order to protect its position in ongoing litigation. The College is in the midst of a high-profile challenge to the Obama Administration's rules accommodating non-profits that object to providing insurance coverage for contraceptive services.  Earlier this month, the 7th Circuit denied the college a preliminary injunction (see prior posting). Central to Wheaton's challenge is its argument that the accommodation which allows it to opt out of furnishing coverage directly still requires it to furnish information that triggers the objectionable coverage then being furnished by the insurer to its plan beneficiaries.  Wheaton has now posted a page on its website linking to a nearly hour-long video giving students who had expected to enroll in the student plan information on obtaining health insurance from other sources and announcing financial assistance for students who find their insurance costs increased.

Cert. Petition Filed In Challenge To Non-Profit Contraceptive Coverage Accommodataion

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Little Sisters of the Poor Home for the Aged, Denver Colorado v. Burwell.  In the case, the U.S. 10th Circuit Court of Appeals upheld against RFRA and constitutional challenges the Obama Administration's Affordable Care Act accommodation for religious non-profits that object to furnishing contraceptive coverage. (See prior posting.) Becket Fund issued a press release announcing the filing of the petition for review.

8th Circuit: Parents Have Standing To Challenge ACA Contraceptive Coverage Requirement For Family Policy

Yesterday the U.S. 8th Circuit Court of Appeals handed down a decision that could be the precursor to a new round of challenges to the Affordable Care Act's contraceptive coverage mandate. In Wieland v. U.S. Department of Health and Human Services, (8th Cir., July 20, 2015), the court held that parents have standing to challenge provisions preventing them from obtaining insurance coverage for their daughters under a policy that excludes coverage for contraceptives.  Prior to the Affordable Care Act, Missouri law required that health insurers offer an employer a health care plan that excludes contraceptive coverage if coverage violates the employer’s religious beliefs. Also individual enrollees were permitted to opt out of contraceptive coverage based on religious objections. In a suit brought by insurance companies, a federal district court held that these provisions were pre-empted by the Affordable Care Act.

Plaintiffs in this suit are a Missouri legislator and his wife who receive family health coverage through the state of Missouri's health plan for its employees. According to the court:

The Wielands, parents of three daughters, are committed to the health and well being of their children and thus seek to ensure that their daughters have comprehensive healthcare coverage. As devout Roman Catholics, they believe that they cannot pay for or participate in a healthcare plan that includes coverage for contraceptives or provide such coverage to their daughters without violating their sincerely held religious beliefs.

National Law Journal reports on the decision.

Court Allows Enforcement of New Contraceptive Coverage Accommodation Rules For Closely Held Companies

In Tyndale House Publishers, Inc. v. Burwell, (D DC, July 15, 2015), the federal district court for the District of Columbia issued an order consistent with the U.S. Supreme Court's Hobby Lobby decision barring the federal government from enforcing the Affordable Care Act contraceptive coverage requirement as it existed in June 2014 against a for-profit Bible publishing company to the extent that the company has religious objections to providing coverage. However the order permits the government to enforce its newly adopted accommodation for closely held companies which allows an opt-out on religious grounds with contraceptive coverage then being furnished directly by the insurance company. The court's order though adds that nothing prevents plaintiffs from filing a new civil action challenging the accommodation rules. In a press release, Alliance Defending Freedom describes the court's order as a "victory" for the Bible publisher.

10th Circuit Upholds ACA Non-Profit Contraceptive Coverage Accommodation

In Little Sisters of the Poor Home for the Aged, Denver, Colorado v. Burwell, (10th Cir., July 14, 2015), the U.S. 10th Circuit Court of Appeals upheld the Obama Administration's Affordable Care Act accommodation for religious non-profits that object to furnishing contraceptive coverage.  Plaintiffs asserted RFRA, free exercise, Establishment Clause and free speech challenges to the rules that allow an opt-out with contraceptive coverage then being furnished directly by the insurer or third party administrator.  The 98-page majority opinion, written by Judge Matheson who began it with a Glossary of Legal and Regulatory Terms, particularly focused on the arguments under RFRA.  Here are a few excerpts:

Before we present our analysis of the issues, we wish to highlight the unusual nature of Plaintiffs’ central claim, which attacks the Government’s attempt to accommodate religious exercise by providing a means to opt out of compliance with a generally applicable law....  Plaintiffs not only challenge a law that requires them to provide contraceptive coverage against their religious beliefs, they challenge the exception that the law affords to them....

We conclude the accommodation does not substantially burden Plaintiffs’ religious exercise. The accommodation relieves Plaintiffs from complying with the Mandate and guarantees they will not have to provide, pay for, or facilitate contraceptive coverage. Plaintiffs do not “trigger” or otherwise cause contraceptive coverage because federal law, not the act of opting out, entitles plan participants and beneficiaries to coverage. Although Plaintiffs allege the administrative tasks required to opt out of the Mandate make them complicit in the overall delivery scheme, opting out instead relieves them from complicity. Furthermore, these de minimis administrative tasks do not substantially burden religious exercise for the purposes of RFRA. 

Judge Baldock dissented in part, arguing that applying the accommodation to self-insured plans using Third Party Administrators violates RFRA.  He said in part:

Under the ACA accommodation scheme, in the insured health plan context, “a health insurance issuer . . . would be obligated to provide contraceptive coverage under the ACA whether or not [the insured non-profit] delivered the Form or notification to HHS.” ... But in the self-insured context, a TPA would be “authorized and obligated to provide the coverage . . . only if the religious non-profit . . . opts out.”

AP reports on the decision which dealt with appeals in cases from Oklahoma and Colorado.

Final Accommodation Rules Adopted For Religious Objectors To ACA Contraceptive Coverage

The Obama Administration on Friday released final rules on accommodating religious objections to the Affordable Care Act requirement for health insurance coverage of contraceptive services. (Full text of Rules and accompanying release). The final rules, which provide for the insurer or policy administrator to provide contraceptive coverage directly when the employer objects to providing coverage, apply to any non-profit that holds itself out as a religious organization and has religious objections to covering some or all contraceptive items or services.

The accommodation also applies to any closely-held for-profit business entity where "the organization’s highest governing body (such as its board of directors...) has adopted a resolution or similar action, under the organization’s applicable rules of governance and consistent with state law, establishing that it objects to covering some or all of the contraceptive services on account of the owners’ sincerely held religious beliefs." The final rules define a closely-held entity as one whose shares or ownership interests are not publicly traded and where more than 50% in value of its ownership interests is owned directly or indirectly (e.g. through a corporation or trust) by 5 or fewer individuals or families.

On the important question of the type of notice an objecting non-profit or closely-held business must furnish, the final rules carry forward the procedures currently in place. As summarized by the adopting Release:

These final regulations continue to allow eligible organizations to choose between using EBSA Form 700 [and furnishing it directly to the insurer or third party administrator] or the alternative process consistent with the Wheaton interim order. The alternative process provides that an eligible organization may notify HHS in writing of its religious objection to covering all or a subset of contraceptive services. The notice must include the name of the eligible organization and the basis on which it qualifies for an accommodation; its objection based on sincerely held religious beliefs....; the plan name and type...; and the name and contact information for any of the plan’s third party administrators and health insurance issuers.

Health Affairs Blog has more on the new rules. A Friday press release from the Becket Fund continues to express strong opposition to the Final Rules. [Thanks to Mark Scarberry via Religionlaw for the lead.]

Cert. Filed In Religious Non-Profit Contraceptive Coverage Compromise

A petition for certiorari to the U.S. Supreme Court (full text) was filed yesterday in Houston Baptist University v. Burwell.  In the case, brought by three religiously affiliated colleges, the U.S. 5th Circuit Court of Appeals upheld the Obama administration's rules that allow religious non-profits to opt out of the Affordable Care Act's contraceptive coverage mandate by certifying their religious opposition and either notifying their insurer or plan administrator of their opposition, or furnishing the government with the name and contact information for their insurer or administrator. (See prior posting.) A Becket Fund press release announcing the filing of the petition says that three other petitions challenging the non-profit accommodation have already been filed with the Court.

Supreme Court Orders Stay of Sorts In Non-Profit Contraceptive Mandate Case

In Zubik v. Buwell, the U.S. 3rd Circuit Court of Appeals upheld the Obama Administration's rules accommodating the Affordable Care Act contraceptive coverage mandate to religious non-profits. (See prior posting.)  Plaintiffs sought a stay from the Supreme Court, and in April Justice Alito issued an order temporarily staying the mandate as to the Catholic Diocese of Erie and the Catholic Diocese of Pittsburgh along with affiliated charities and schools in the two dioceses (See prior posting.) He then referred the plaintiffs' motion to the full Court, and yesterday the Court issued the following Order :

The application for an order recalling and staying the issuance of the mandate of the Court of Appeals pending the filing and disposition of a petition for a writ of certiorari, having been submitted to Justice Alito and by him referred to the Court, the application as presented is denied. The Court furthermore orders: If the applicants ensure that the Secretary of Health and Human Services is in possession of all information necessary to verify applicants’ eligibility under 26 CFR §54.9815-2713A(a) or 29 CFR §2590.715-2713A(a) or 45 CFR §147.131(b) (as applicable), the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of their petition for certiorari.

Nothing in this interim order affects the ability of the applicants’ or their organizations’ employees to obtain, without cost, the full range of FDA approved contraceptives. Nor does this order preclude the Government from relying on the information provided by the applicants, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act. See Wheaton College v. Burwell, 573 U. S. ___ (2014).

This order should not be construed as an expression of the Court’s views on the merits. Ibid.

Justice Sotomayor would deny the application. 

5th Circuit Rejects RFRA Challenge To Contraceptive Mandate Accommodation For Religious Non-Profits

In East Texas Baptist University v. Burwell, (5th Cir., June 22,2015), the U.S. 5th Circuit Court of Appeals upheld the Obama administration's rules that allow religious non-profits to opt out of the Affordable Care Act's contraceptive coverage mandate by certifying their religious opposition and either notifying their insurer or plan administrator of their opposition, or furnishing the Department of Health and Human Services with the name and contact information for their insurer or administrator.  In either case, the insurer or administrator must then offer coverage directly.  Plaintiffs argued that this accommodation still violates their religious freedom rights under RFRA.  The court disagreed, saying in part:

Although the plaintiffs have identified several acts that offend their religious beliefs, the acts they are required to perform do not include providing or facilitating access to contraceptives. Instead, the acts that violate their faith are those of third parties. Because RFRA confers no right to challenge the independent conduct of third parties, we join our sister circuits in concluding that the plaintiffs have not shown a substantial burden on their religious exercise.

Slate reports on the decision.

Cert Filed and Stay Issued In Priests For Life Challenge To Contraceptive Coverage Accommodation

On June 9, a petition for certiorari (full text) was filed with the Supreme Court in Priests For Life v. U.S. Department of Health and Human Services.  In the case, a 3-judge panel of the D.C. Circuit upheld the Obama administration's compromise for religious non-profits that object to furnishing contraceptive coverage under the Affordable Care Act.  The D.C. Circuit denied an en banc rehearing, but with 3 judges writing a dissent from the denial and 3 others responding. (See prior posting.)  Then on June 10, the D.C. Circuit issued an Order (full text) staying its decision pending final disposition of the case by the Supreme Court. In a June 10 press release, Priests For Life announced the stay and added: "no matter what happens, we will not obey the mandate, nor will we pay fines to the government."

District Court Applies Hobby Lobby To Auto Dealership

In Holland v. U.S. Department of Health and Human Services, (D WV, May 29, 2015), a West Virginia federal district court, applying the Supreme Court's Hobby Lobby ruling, issued a permanent injunction barring federal authorities from enforcing the Affordable Care Act contraceptive coverage requirement, as in effect June 30, 2014, against a West Virginia auto dealership. The complaint (full text) in the case was brought by Joe Holland Chevrolet, Inc., a closely-held corporation, and its 91% owner who became a born-again Christian in 1996. Joe Holland objects to providing coverage for Plan B and ella, contraceptives that he considers abortifacients. Charleston Daily Mail reports on the decision. Liberty Institute issued a press release on the decision.

DC Circuit Denies En Banc Review of Priests For Life ACA Contraceptive Mandate Challenge

Yesterday in Priests for Life v. U.S. Department of Health and Human Services, (DC Cir., May 20, 2015), the D.C. Circuit Court of Appeals denied a petition for rehearing en banc. In the case, a 3-judge panel upheld the Obama administration's compromise for religious non-profits that object to furnishing contraceptive coverage under the Affordable Care Act. (See prior posting.) While the petition for rehearing failed to garner votes of a majority of the Circuit's judges, three separate opinions on behalf of six different judges were filed along with the per curiam denial.

Judge Brown, dissenting from the denial, joined by Judge Henderson argued

The panel conceded Plaintiffs sincerely “believe that the regulatory framework makes them complicit in the provision of contraception,” ... That acknowledgement should end our inquiry into the substance of their beliefs.

Judge Kavanaugh also dissented from the denial of a rehearing, arguing that the government has a still less restrictive alternative available-- a less restrictive notice of an opt out by the non-profit.

Judge Pillard, joined by Judges Rogers and Wilkins defended their 3-judge panel decision:

the dissenters perceive in Hobby Lobby a potentially sweeping, new RFRA prerogative for religious adherents to make substantial-burden claims based on sincere but erroneous assertions about how federal law works....

RFRA protects religious exercise. In no respect do we, nor could we, question Plaintiffs’ sincere beliefs about what their faith permits and forbids of them. But we can and must decide which party is right about how the law works. We concluded that the regulation challenged in this case does not, as a matter of law or fact, give Plaintiffs’ conduct the contraception-facilitating effect of which they complain.

Washington Times reports on the decision.

7th Circuit Denies Notre Dame Preliminary Injunction In Its Contraceptive Mandate Challenge

Deciding the case on remand from the Supreme Court (see prior posting), the U.S. 7th Circuit Court of Appeals in a 2-1 decision in University of Notre Dame v. Burwell, (7th Cir., May 19, 2015), refused to grant a preliminary injunction to Notre Dame University in its challenge to the Affordable Care Act contraceptive coverage mandate as applied to religious non-profits.  Federal regulations allow religious non-profits to file a form notifying their insurer or plan administrator of their objection to providing contraceptive coverage.  When that is done, the insurer or administrator must provide coverage directly.  Judge Posner's majority opinion says in part:

Notre Dame claims to be complicit in the sin of contraception. It wants to dissolve that complicity by forbidding Aetna and Meritain ... to provide any contraceptive coverage to Notre Dame students or staff.... It regards its contractual relationship with those companies as making the university a conduit between the suppliers of the coverage and the university’s students and employees.... 

Although Notre Dame is the final arbiter of its religious beliefs, it is for the courts to determine whether the law actually forces Notre Dame to act in a way that would violate those beliefs. As far as we can determine from the very limited record, the only “conduit” is between the companies and Notre Dame students and staff; the university has stepped aside. 

Judge Hamilton wrote a concurring opinion focusing on the Supreme Court's favorable discussion of the accommodation for religious non-profits in its Hobby Lobby opinion. Judge Flaum wrote a dissenting opinion arguing that "the law turns Notre Dame into a conduit for the provision of cost-free contraception." Wall Street Journal reports on the decision.

Supreme Court GVR's Another Non-Profit Contraceptive Mandate Challenge

The U.S. Supreme Court yesterday in Michigan Catholic Conference v. Burwell, (Docket No. 14-701) (Order List) granted certiorari, vacated the judgment below and remanded the case to the 6th Circuit for further consideration in light of Burwell v. Hobby Lobby Stores, Inc.  In the case, the 6th Circuit denied preliminary injunctions to several Catholic non-profit entities that object to the Affordable Care Act contraceptive coverage accommodation.  The accommodation allowed non-profits with religious objections to opt out of furnishing contraceptive coverage to their employees by completing a form and sending it to their insurer or third party administrator which would then furnish contraceptive coverage directly. (See prior posting.) Subsequently the accommodation for non-profits has been further modified to allow notice to be sent to the federal government rather than the insurer or administrator. (See prior posting.) The Court's GVR order in the case follows a similar one issued last month in Notre Dame University's challenge to the same regulations. (See prior posting.) Becket Fund issued a press release on the Court's action yesterday.

Justice Alito Stays 3rd Circuit's Non-Profit Contraceptive Mandate Decision

Late on Wednesday, U.S. Supreme Court Justice Samuel Alito issued an order (full text) temporarily staying the Third Circuit's mandate in Zubik v. Buwell. In the case, the 3rd Circuit upheld the Obama Administration's rules accommodating the Affordable Care Act contraceptive coverage mandate to religious non-profits. (See prior posting.)  Religious non-profits contend that the accommodation is inadequate. A response by the government is due to Justice Alito by April 20.  The 3rd Circuit opinion covered four separate lawsuits involving a variety of claimants, both for-profit and non-profit.  Justice Alito's order applies only to two of the cases that involve the Catholic Diocese of Erie and the Catholic Diocese of Pittsburgh along with affiliated charities and schools in the two dioceses. National Law Journal reports on the decision.

5th Circuit Hears Oral Arguments In ACA Non-Profit Contraceptive Mandate Case

The U.S. 5th Circuit Court of Appeals yesterday heard oral arguments (audio recording of full arguments) in East Texas Baptist University v. Burwell.  In the case, a Texas federal district court enjoined the government from enforcing the Affordable Care Act contraceptive coverage mandate against two Baptist universities and a Presbyterian seminary.  The court concluded that under RFRA the contraceptive mandate accommodation calling for objecting religious non-profits to complete a self-certification form imposes a substantial burden on the schools' free exercise rights. (See prior posting.) Federal agencies have made some changes in the manner in which non-profits may opt out subsequent to the district court decision.  Houston Chronicle reports on the oral arguments.

Supreme Court GVRs Notre Dame's Appeal In Contraceptive Mandate Challenge

As previously reported, in October Notre Dame University filed a petition for certiorari with the U.S. Supreme Court in its challenge to the Affordable Care Act contraceptive coverage mandate as applied to religious non-profits.  However instead of seeking full review of the 7th Circuit's decision, the petition asked the Court to issue a so-called GVR order. Today the Supreme Court did just that.  In University of Notre Dame v. Burwell, (Docket No. 14-392) (Order List), the Court issued the following order:

The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Seventh Circuit for further consideration in light of Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014). 

[Thanks to Marty Lederman vial Religionlaw for the lead.]

3rd Circuit Upholds ACA Contraceptive Coverage Accommodation For Religious Non-Profits

In Geneva College v. Secretary U.S. Department of Health and Human Services, (3d Cir., Feb. 11, 2015), the U.S. 3rd Circuit Court of Appeals upheld the Obama administration's accommodation under the Affordable Care Act for religious non-profits that object to furnishing contraceptive coverage. The court rejected claims by the non-profits that the accommodation imposes a substantial burden on their religious exercise in violation of RFRA.  The court said in part:

While the Supreme Court reinforced in Hobby Lobby that we should defer to the reasonableness of the appellees’ religious beliefs, this does not bar our objective evaluation of the nature of the claimed burden and the substantiality of that burden on the appellees’ religious exercise. This involves an assessment of how the regulatory measure actually works. Indeed, how else are we to decide whether the appellees’ religious exercise is substantially burdened? 

... [W]e cannot agree with the appellees’ characterization of the effect of submitting the form as triggering, facilitating, or making them complicit in the provision of contraceptive coverage. At oral argument, the appellees argued that it was not merely the filing of the form that imposed a burden, but, rather, what follows from it. But free exercise jurisprudence instructs that we are to examine the act the appellees must perform—not the effect of that act—to see if it burdens substantially the appellees’ religious exercise.

The court also rejected the argument that the regulations improperly partition the Catholic Church by preventing religious non-profits from claiming the total exemption available to the diocese with which they are affiliated. Pittsburgh Post-Gazette reports on the decision.

UPDATE: On May 6, the mandate was stayed (full text of order) pending U.S. Supreme Court action in Zubik v. Burwell which raises similar issues. (See prior related posting.)