Written by Don Byrd
The Hobby Lobby case, decided earlier this year, resolved the question of whether the religious freedom rights of closely held, for-profit corporations whose owners object to providing contraception coverage are violated by the Affordable Care Act’s contraception mandate. The Court said yes. But, as I have said before, that was not the last religious freedom question posed by that controversial provision of the law.
Still at issue are the claims of religious organizations. The ACA provides religious organizations with a means of accommodation, so long as they file a form certifying that they object on religious grounds. The plaintiffs, however, object even to using the form, because, they argue, that process ultimately triggers the availability of contraception to their employees, making them complicit in activity their religion forbids. Such a requirement, these plaintiffs maintain, substantially burdens their religious exercise in violation of the Religious Freedom Restoration Act.
In a unanimous opinion released today, the D.C. Circuit Court of Appeals disagreed. The filing requirement, the Court ruled, does not substantially burden their religious exercise.
Religious objectors do not suffer substantial burdens under RFRA where the only harm to them is that they sincerely feel aggrieved by their inability to prevent what other people would do to fulfill regulatory objectives after they opt out. They have no RFRA right to be free from the unease, or even anguish, of knowing that third parties are legally privileged or obligated to act in ways their religion abhors.
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Plaintiffs’ objection rests on their religious belief that “they may not provide, pay for, and/or facilitate access to contraception, sterilization, abortion, or related counseling in a manner that violates the teachings of the Catholic Church.” But the regulations do not compel them to do any of those things. Instead, the accommodation provides Plaintiffs a simple, one-step form for opting out and washing their hands of any involvement in providing insurance coverage for contraceptive services.
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Notwithstanding Plaintiffs’ contrary contentions, the regulations provide an opt-out mechanism that shifts to third parties the obligation to provide contraceptive coverage to which health insurance beneficiaries are entitled, and that fastidiously relieves Plaintiffs of any obligation to contract, arrange, pay, or refer for access to contraception in any way that might constitute a substantial burden on their religious exercise under RFRA.
The Court went on to dispute the plaintiffs’ characterization of contraception coverage as “triggered” by their certification, and indicates that even if they determined the requirement was a substantial burden, it would not violate RFRA because it is necessary to further a compelling government interest.
After the Hobby Lobby decision, the Supreme Court issued an injunction halting the administration from enforcing this accommodation process against Wheaton College, a plaintiff in a similar lawsuit, while the cases work their way through the federal court system. Today’s D.C. Circuit decision joins the 6th and 7th Circuits, which both reached the same conclusion. The 10th Circuit is slated to hear similar arguments in the Little Sisters of the Poor case, later this year.
