Written by Don Byrd
By now, most of you are familiar with the lawsuits brought by Hobby Lobby and others challenging the Affordable Care Act’s requirement that employee health insurance plans provided by for-profit employers must include coverage for contraception. The U.S. Supreme Court is set to hear arguments over this issue next month.
But there is another strain of religious-based challenges to the mandate winding its way through courts. This second group of lawsuits has been brought by religious institutions that are exempt from the requirement to provide such coverage. Despite being exempt, they object because once they claim their exemption, insurance companies will be required to offer such coverage directly to their employees. Requiring the institution to “trigger” such events violates their rights under the Religious Freedom Restoration Act, they argue, because it substantially burdens their religious exercise without a compelling government justification.
In a ruling issued Friday, the 7th Circuit Court of Appeals denied an injunction sought by one of those plaintiffs, Notre Dame University, largely because the Court was skeptical of the “trigger” argument. Here are some highlights from the opinion:
If the government is entitled to require that female contraceptives be provided to women free of charge, we have trouble understanding how signing the form that declares Notre Dame’s authorized refusal to pay for contraceptives for its students or staff, and mailing the authorization document to those companies, which under federal law are obligated to pick up the tab, could be thought to “trigger” the provision of female contraceptives.
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The accommodation in this case consists in the organization’s (that is, Notre Dame’s) washing its hands of any involvement in contraceptive coverage, and the insurer and the third‐party administrator taking up the slack under compulsion of federal law. Notre Dame is telling Aetna and Meritain: “we’re excused from the new federal obligation relating to contraception,” and in turn, the government tells those insurance companies “but you’re not.” This is a warning, not a trigger. It enables nothing. The sole “enabler” is the federal statute that Notre Dame has been allowed to opt out of.
The Court also emphasized that the insurance companies would be required to offer contraception coverage to the employees regardless of whether Notre Dame properly alerted them of their exemption. “[S]igning the form simply shifts the financial burden from the university to the government.”
