A federal appeals court denied a request by Catholic groups in Michigan and Tennessee to exempt them from the contraception coverage requirements in the Affordable Care Act, saying the groups had not shown they were likely to succeed on their challenge to the law.
The unanimous decision by a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit held that because all of the plaintiffs are eligible either for an exemption from the coverage requirement or a religious accommodation that shifts the burden of complying with the requirement to third-party insurers, the benefit does not substantially burden the plaintiffs’ religious rights. According to the court, “Because these [plaintiffs] may obtain the accommodation from the contraceptive-coverage requirement without providing, paying for, and/or facilitating access to contraception, the contraceptive-coverage requirement does not impose a substantial burden on these [plaintiffs'] exercise of religion.”
The plaintiffs challenging the birth control benefit include the Michigan Catholic Conference, the Catholic Charities Diocese of Kalamazoo, the Catholic Diocese of Nashville, and Catholic Charities of Tennessee. Like other religious nonprofits challenging the benefit, they claim that regardless of the exemptions and accommodations provided by the law, the requirement that those employers who provide health insurance for their employees include coverage for contraceptives violates their rights. In November 2013, they sued, arguing the contraceptive coverage requirement violated the Religious Freedom Restoration Act, their First Amendment free speech and free exercise rights, the Establishment Clauses of the First Amendment, and the Administrative Procedure Act, which governs certain federal agency actions like rule-making. A lower court denied their request for a preliminary injunction blocking the law. This week’s ruling affirms that decision.
In support of their claims, the plaintiffs had argued that the court should defer to their conclusion that the exemption and accommodation arrangement forces them to provide, pay for, and/or facilitate access to contraceptive coverage, rather than to conduct its own inquiry as to whether this conclusion is true. “Put another way,” the court wrote, “the [plaintiffs] appear to ask the court to defer not only to their belief that requesting the exemption or the accommodation makes them complicit in sin, but also to defer to their understanding of how the regulatory measure actually works.”
This is a familiar argument advanced by those opposing the birth control benefit and one that depends on courts mistaking a moral or religious conclusion on how the contraceptive coverage requirement works with a legal one. This is a mistake the Sixth Circuit avoids. “[A]lthough we acknowledge that the appellants believe that the regulatory framework makes them complicit in the provision of contraception, we will independently determine what the regulatory provisions require and whether they impose a substantial burden on appellants’ exercise of religion,” wrote the court.
The Sixth Circuit then turned its attention to the real problem that many of the nonprofit challengers have with the contraceptive coverage requirement: the fact that, despite the generous accommodation provided under the law, these institutions can’t block third parties from complying with the law. According to the court, “The appellants allege that providing, paying for, and/or facilitating access to contraceptive coverage burdens their exercise of religion. As discussed … the exemption and accommodation framework does not require them to do any of these things.”
The court continued:
The framework does not permit them to prevent their insurance issuer or third-party administrator from providing contraceptive coverage to their employees pursuant to independent obligations under federal law. However, the inability to ‘restrain the behavior of a third party that conflicts with [their] religious beliefs,’ does not impose a burden on the appellants’ exercise of religion.
In all, the opinion is a strong rebuke of the legal arguments made by religious nonprofits challenging the coverage requirement, many of whom are exempt from the law to begin with.
And yet, religious nonprofits have filed more than 50 federal lawsuits challenging the contraceptive coverage requirement. More than 30 of those lawsuits are still pending in both federal district courts and federal courts of appeals across the country, increasing the likelihood that the Roberts Court eventually intervenes. But with a decision in the for-profit Hobby Lobby and Conestoga Wood Specialties cases still pending, just how and when that happens is anybody’s guess.