Another Opinion Upholding the Contraceptives Coverage Accommodation

Today, the 10th Circuit issued its opinion in the Little Sisters of the Poor case, holding that the accommodation offered to religious nonprofits – and now also to certain closely-held for-profits – is legally acceptable under the standard imposed by the Religious Freedom Restoration Act (RFRA).  The accommodation, just recently finalized in its current form, allows eligible employers to avoid covering contraceptives for their employees so long as they notify their insurer or the government of their religious objection to doing so. Importantly, employees are still legally guaranteed access to free contraceptives through alternate mechanisms, usually the via insurer directly.

The 10th Circuit’s opinion represents the fifth win for the administration on the accommodation issue following Hobby Lobby. (Note that Hobby Lobby was about an employer who was not previously eligible for the accommodation.)  The RFRA standard provides that the government “may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

In Little Sisters, the 10th Circuit dispensed with the RFRA claim by holding that there was no substantial burden, one of the threshold questions in the RFRA analysis.  It explained that the fact of the employer’s opt-out does not *cause* contraceptives coverage (i.e., by requiring another party to provide coverage in their stead), which instead is mandated by federal law.  It also determined that there is no substantial burden from complicity in the overall scheme to deliver contraceptive coverage, i.e., by delivering notice of objection, because their only involvement in the scheme is the act of opting out.  Thus, RFRA’s protections were not implicated, and the accommodation can stand.

I fully agree with the result in this case, but would have gotten there another way.

I am sympathetic to the objector’s complicity claims, and am wary of the idea of the government telling a religious believer what they are and are not complicit in as a matter of fact or law – that strikes me as too close to evaluating the validity of religious beliefs, which courts are not supposed to do, focusing instead on sincerity only.

We can grant that these employers have a complicity claim, and look instead to the severity of the penalty for failing to abide by the law when trying to evaluate whether there is a substantial burden.  Here, the consequences for failure to comply are severe financial penalties, which should certainly meet RFRA’s substantial burden threshold.

But even granting that the accommodation could substantially burden religious beliefs, I think it must be upheld – as the 10th Circuit and other courts have – because there is no less restrictive means of furthering the government’s compelling interest in ensuring free access to contraceptives.  The government has come up with an alternative approach that lets objecting employers almost completely off the hook save for a notice requirement, and still preserves access for women.  What else could it realistically do?

The Hobby Lobby court suggested that perhaps the government could step in and provide free access to contraceptives when an employer objects.  What a great idea! Let’s do that for all health care and create a single payer government health system.  Oh, right – we keep rejecting true health care reform.  More importantly, if it were really a less restrictive alternative for the government to simply step in, then the requirement for a less restrictive alternative within the RFRA test would be rendered meaningless – there would always be one.

Here, the government has been incredibly accommodating of religious believers – as it should be.  But with the new regulations in place extending the contraceptives coverage accommodation to a wide variety of objectors and the mounting weight of judicial precedent upholding the accommodation, there appears to be light at the end of the tunnel.  Hopefully, this round of ACA litigation will be over soon too.  Then the work will just be in making sure that the law is actually complied with, which is no small feat.

Holly Fernandez Lynch

Holly Fernandez Lynch, JD, MBE, is the John Russell Dickson, MD Presidential Assistant Professor of Medical Ethics in the Department of Medical Ethics and Health Policy at Penn’s Perelman School of Medicine. She is also the Assistant Faculty Director of Online Education, helping to lead the university’s first online master’s degree, the Master of Health Care Innovation, and other online offerings.

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