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November 14, 2014
  Priests for Life et al. v. HHS
Headline: D.C. Circuit joins other circuits in concluding that opt-out provision for Affordable Care Act's contraceptive coverage requirement does not itself violate RFRA.

Area of Law: Religious Freedom Restoration Act; First Amendment

Issue(s) Presented: Whether the procedure allowing religious nonprofit organizations to opt out of providing contraceptive coverage itself burdens free exercise of religion in violation of RFRA.

Brief Summary:

Plaintiffs, eleven Catholic nonprofit organizations, including Priests for Life, the Archdiocese of Washington, Thomas Aquinas College, and Catholic University of America, employ both Catholics and non-Catholics and provide health insurance to their employees and students through a variety of self-insured and third-party health plans. Plaintiffs filed two actions in August and September 2013 objecting to the contraceptive coverage mandate of the Patient Protection and Affordable Care Act ("ACA") and the accommodation mechanism that allows nonprofit religious organizations to opt out of the contraceptive coverage requirement. They contended that the contraceptive coverage requirement and accommodation fail adequately to dissociate them from the provision of contraceptive coverage, thus substantially burdening their religious exercise in violation of the Religious Freedom Restoration Act ("RFRA"). They also claimed that the ACA, by requiring the insurance providers with whom Plaintiffs contract to provide contraceptive coverage, effectively requires Plaintiffs to facilitate access to contraception, again in violation of RFRA.

The U.S. District Court for the District of Columbia granted the government's motion for summary judgment as to all Plaintiffs except Thomas Aquinas College, finding that the accommodation effectively severed organizations that offer their employees or students an insured group health plan from participation in the provision of the contraceptive coverage. However, the court granted summary judgment in favor of Thomas Aquinas College on its RFRA claim, finding that, because it was self-insured, the contraceptive requirement could require it to provide contraceptive coverage if it could not find a third-party insurer to administer that coverage. All Plaintiffs appealed, and the government cross-appealed the ruling for Thomas Aquinas College. The United States Court of Appeals for the District of Columbia Circuit upheld the challenged regulations.

The D.C. Circuit began by noting that the accommodation under challenge was precisely the middle-ground alternative the Supreme Court considered in Hobby Lobby and assumed would not impinge on for-profit corporations' religious beliefs. The D.C. Circuit observed, moreover, that the Hobby Lobby Court had noted that such an accommodation would further the government's interest in providing contraceptive coverage without hindering the corporations' religious beliefs.

Looking at the specifics, the D.C. Circuit concluded that it, not Plaintiffs, was the proper entity to evaluate the substantiality of the burden on Plaintiffs' religious beliefs. The court then found that the regulatory accommodation imposed only de minimis burden on eligible organizations, requiring only that they submit a single-page form communicating their eligibility in order to fully extricate themselves from the burden of providing contraceptive coverage to employees. Because the opt-out mechanism relieves Plaintiffs of any obligation to contract, arrange, or pay for access to contraception, the court concluded that it did not constitute a substantial burden on their religious exercise under RFRA and thus was not subject to strict scrutiny. In doing so, the court agreed with the Seventh Circuit in University of Notre Dame v. Sebelius, 743 F.3d 547, 559 (7th Cir. 2014), and the Sixth Circuit in Michigan Catholic Conference & Catholic Family Services v. Burwell, 755 F.3d 372 (6th Cir. 2014).

Turning to Thomas Aquinas College, the self-insured Plaintiff, the court rejected as premature the argument that the regulations obligated Plaintiff to find new third-party administrators (TPAs) in the event their existing TPAs declined to assume responsibility for contraceptive coverage. Moreover, the court noted that the government had clarified on appeal that, if an organization's TPA declined to provide contraceptive coverage, the regulations would not require the organization to identify and contract with a new one.

The court next concluded that, even if the requirement were subject to strict scrutiny under RFRA, it would survive. The court found that the contraceptive requirement and accommodation furthered compelling government interests in improving public health and furthering gender equality, assuring women equal access to the benefits of preventive health care coverage by providing contraceptive services seamlessly together with other health services. The court also concluded that the accommodation was the least restrictive means of furthering this interest, allowing the government to pursue its objectives while imposing only a minimal burden on religious nonprofit organizations.

Finally, the court rejected Plaintiffs' Free Exercise and other First Amendment arguments on the basis that the contraceptive coverage requirement was a religiously neutral part of a law of general application that did not target religious organizations and that the notice requirement did not constitute compelled speech.

For the full text of the opinion, see

Panel: Rogers, Pillard, and Wilkins

Argument Date: May 8, 2014

Date of Issued Opinion: November 14, 2014

Docket Number: 13-5368

Decided: affirmed in part

Case Alert Author: Ripple Weistling

Counsel: Robert J. Muise, Noel J. Francisco, Eric Dreiband, and David Yerushalmi for appellants. Mark B. Stern, Stuart F. Delery, Ronald C. Mahen Jr., Beth S. Brinkmann, Alisa B. Klein, and Adam C. Jed for Appellees.

Author of Opinion: Pillard

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 11/14/2014 02:59 PM     DC Circuit  

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