A federal appeals court ruling Thursday could lead to a new Supreme Court test of the Affordable Care Act’s contraceptive mandate, examining whether the Obama administration has done enough to accommodate the objections of religiously affiliated nonprofit organizations such as universities, hospitals and charities.
A panel of the U.S. Court of Appeals for the 8th Circuit in St. Louis said forcing two Missouri organizations to offer contraceptive coverage to employees — even indirectly — would violate the groups’ religious freedoms.
The decision was at odds with that of every other appeals court that has considered the issue. Those courts have said the government’s compromise was adequate. Such splits among the courts usually compel the Supreme Court to settle the issue.
The case would be something of a sequel to the court’s ruling in Burwell v. Hobby Lobby, in which the justices ruled 5 to 4 that some private employers do not have to comply with the contraceptive mandate if doing so would violate the business owner’s religious beliefs. In that case, the government did not offer an accommodation to the employers.
The Affordable Care Act requires that women covered by group health plans be able to obtain contraceptives at no additional cost. Originally, only religious organizations such as churches were exempted. But after protests from religious nonprofit groups, the government devised a work-around for them.
To be eligible, a religious organization must certify to its insurance company that it opposes coverage for contraceptives, or it must send a letter to the government saying so and provide the name of its insurance company. The insurers and government take over from there to provide the services.
But the religious groups say those options each serve as a “trigger” that allows the contraceptives to be provided and makes the groups complicit in what they consider sin.
The nonprofits say this violates the Religious Freedom Restoration Act, which says government must have a compelling reason to substantially burden religious beliefs and the requirement must be the least restrictive means for achieving the government’s goal.
A string of appeals courts has said the government’s accommodation takes care of the problem.
“All plaintiffs must do to opt out is express what they believe and seek what they want via a letter or two-page form,” U.S. Circuit Judge Cornelia Pillard said when such a case came before the U.S. Court of Appeals for the D.C. Circuit.
“Religious nonprofits that opt out are excused from playing any role in the provision of contraception services, and they remain free to condemn contraception in the clearest terms,” she wrote.
But in cases involving Heartland Christian College and addiction services nonprofit CNS International Ministries, the unanimous panel of the 8th Circuit parted ways.
“The question here is not whether CNS and HCC have correctly interpreted the law, but whether they have a sincere religious belief that their participation in the accommodation process makes them morally and spiritually complicit in providing abortifacient coverage,” wrote U.S. Circuit Judge Roger Wollman. “Their affirmative answer to that question is not for us to dispute.”
Wollman said that there is no question that the fines imposed for failing to comply with the mandate would be a substantial burden on the groups and that the government did not meet its burden of proving there was no other way to meet its goal of providing women with contraceptive coverage.
There have been dozens of lawsuits objecting to the mandate, and several are already at the Supreme Court waiting to see whether the justices will agree to hear them.
“The government keeps telling the Supreme Court ‘Move along, nothing important here’ in hopes that the court will ignore this crucial issue,” Lori Windham, senior counsel of the Becket Fund for Religious Liberty, said in a statement.
“But with today’s decisions, the court will have great reason to decide this issue in the next term,” she said.
That term begins next month.