Written by Don Byrd
A year ago, a legal challenge to the government’s contraception mandate accommodation procedures for religious nonprofits seemed highly likely to make it to the U.S. Supreme Court. After all, the Court issued an injunction halting the accommodation process for one of the plaintiffs, Wheaton College. Last week, however, the 2nd Circuit Court of Appeals became the 7th appeals court, out of 7 that have ruled, to uphold the accommodation process, making the question of whether the high court will ultimately step in seem much more in doubt.
The 2nd Circuit held that religious nonprofits are not substantially burdened by the requirement that they file a form or notify HHS in writing to register an objection to the contraception mandate. Because there is no substantial burden, the plaintiffs are not entitled to relief from the regulation under the Religious Freedom Restoration Act (RFRA).
Here is an excerpt from the opinion (pdf):
Plaintiffs’ act of notification results in downstream conduct they find religiously objectionable. . . Plaintiffs cannot claim a substantial burden on the basis of this subsequent conduct. “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.” [Quoting from the D.C. Circuit’s opinion in Priests for Life] The objectively insubstantial burden of filing the notification form or letter does not become a substantial burden because of the subsequent burdens imposed on third parties by the government.
Similar cases are still pending in other Circuit Courts of Appeal. Stay tuned.
