Written by Don Byrd
This week the 8th Circuit became the first to rule in favor of religious nonprofits in the continuing legal battle over the contraception coverage mandate in the Affordable Care Act. The Department of Health and Human Services has implemented a means of accommodating those organizations that object on religious grounds, but plaintiffs argue the accommodation process is insufficient and itself unlawfully burdens their religious exercise.
The other circuits that have addressed this question have ruled the accommodation process does not substantially burden the plaintiffs under the Religious Freedom Restoration Act (RFRA), but the 8th Circuit panel unanimously accepted the argument that signing the form to request an accommodation is in fact likely a substantial burden that the government cannot sufficiently justify.
From the opinion:
CNS and HCC assert that their religious beliefs dictate that they abstain from conduct that furthers the government’s regulatory scheme to provide their employees and plan beneficiaries with coverage for objectionable contraceptives. They argue that the accommodation provided via the Form 700/HHS Notice procedure does not eliminate the substantial burden imposed on their religious beliefs because the accommodation process itself triggers the provision of objectionable coverage by their [third-party administrators], making them complicit in conduct that violates their religious beliefs.
…
As Hobby Lobby instructs, however, we must accept CNS and HCC’s assertion that self-certification under the accommodation process—using either Form 700 or HHS Notice—would violate their sincerely held religious beliefs. It is not our role to second-guess CNS and HCC’s honest assessment of a “difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.” As discussed above, Form 700 or HHS Notice will inform CNS and HCC’s TPA of its obligations to facilitate contraceptive coverage for CNS and HCC’s employees and plan beneficiaries and thus will play a part in providing the objectionable contraceptives. As in Hobby Lobby, CNS and HCC sincerely believe that the actions “demanded by the . . . regulations [are] connected to” illicit conduct “in a way that is sufficient to make it immoral for them to” take those actions. CNS and HCC have drawn a line between actions they find “to be consistent with [their] religious beliefs” and actions they consider “morally objectionable.” And it is not for us “‘to say that the line [they] drew was an unreasonable one.’”
The split with other circuits seems to greatly increase the likelihood that the U.S. Supreme Court will ultimately settle this disagreement.
