Written by Don Byrd
[UPDATE 7/14/15: The 10th Circuit has reached the same conclusion, siding with the government in a similar case.]
The 5th Circuit Court of Appeals yesterday joined the 3rd, 6th, 7th, and D.C. Circuits in rejecting a challenge to the Obama Administration’s accommodation process for religious nonprofit organizations that object to the contraceptive coverage mandate in the Affordable Care Act (ACA). The Court held that the government’s requirement that such organizations submit an accommodation form to HHS to certify their exemption from the mandate does not substantially burden plaintiffs’ religious exercise because it does not require them to provide or facilitate access to contraceptives.
The Court argued that accepting claims like this one would arguably allow plaintiffs to stop the government from engaging in all kinds of activities.
Here is an excerpt from the opinion:
The acts that violate their faith are the acts of the government, insurers, and third-party administrators, but RFRA does not entitle them to block third parties from engaging in conduct with which they disagree.
…
Accepting such claims could subject a wide range of federal programs to strict scrutiny. Perhaps an applicant for Social Security disability benefits disapproves of working on Sundays and is unwilling to assist others in doing so. He could challenge a requirement that he use a form to apply because the Social Security Administration might process it on a Sunday. Or maybe a pacifist refuses to complete a form to indicate his beliefs because that information would enable the Selective Service to locate eligible draftees more quickly. The possibilities are endless, but we doubt Congress, in enacting RFRA, intended for them to be.
While the Supreme Court decided the contraceptive mandate issue for closely-held corporations in Hobby Lobby, they have yet to consider this separate issue regarding the accommodation process for religious nonprofits. So far, all appeals courts to decide the question have ruled the process does not substantially burden religious organizations under RFRA.
Will the Supreme Court eventually weigh in? Slate’s Mark Joseph Stern writes, “until a court rules the other way, the Supreme Court will probably refrain from wading into the controversy.”
