Written by Don Byrd
The 10th Circuit today became the latest federal appeals court (joining the 3rd, 5th, 6th, 7th, and D.C. Circuits) to uphold the Obama Administration’s accommodation procedures for religious non-profit organizations that object to providing employees health insurance that covers contraception.
Plaintiff religious organizations across the country have cited the Religious Freedom Restoration Act (RFRA) to challenge the government’s accommodation scheme, which allows religious non-profits to opt out of paying for, providing, or facilitating contraception coverage by providing written notice of their religious objection. They argue the notification requirement itself is an unlawful substantial burden under RFRA because it triggers contraception coverage by the insurance provider (or administrator), thus making the organizations participate in providing health services that violate their religious beliefs.
The 10th Circuit disagreed, calling the plaintiffs’ central RFRA claim “unusual” because it “attacks the government’s attempt to accommodate religious exercise.”
Opting out, the court emphasized, does not cause the coverage of objectionable health services because the law requires contraception coverage in either case. The accommodation only requires written notice to shift the burden away from the objecting organization, an administrative requirement that does not constitute a substantial burden under RFRA.
Here are some key excerpts from the court’s opinion:
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.
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This arrangement is typical of religious objection accommodations that shift responsibility to non-objecting entities only after an objector declines to perform a task on religious grounds. Although a religious non-profit organization may opt out from providing contraceptive coverage, it cannot preclude the government from requiring others to provide the legally required coverage in its stead. In short, the framework established by federal law, not the actions of the religious objector, ensures that plan participants and beneficiaries will receive contraceptive coverage.
…
The accommodation scheme does not give plaintiffs discretion to thwart their employees’ right to contraceptive coverage by refusing to provide coverage and also refusing to register their objection so the government can make alternative arrangements to free them from providing coverage. Because Congress has created a federal entitlement to contraceptive coverage and formulated a framework to guarantee that coverage will be provided even if plaintiffs decline to provide it, self-insured plaintiffs do not “cause” contraceptive coverage by exercising their ability to opt out.
You can read the opinion here. The good news: this opinion is about as thorough as I have read yet regarding the accommodation mechanism under ACA, as well as the nuances distinguishing its treatment of insured plans, self-insured plans and self-insured church plans. If you have wondered about some of those things, it is super helpful. The bad news: that helpful thoroughness comes at a cost of 133 pages!
