December 9, 2014 — A Colorado-based order of nuns and four Christian colleges in Oklahoma in the 10th U.S. Circuit Court of Appeals Monday argued that the federal government's contraceptive coverage accommodation for not-for-profits that hold themselves out as religious still violates their religious beliefs, AP/Modern Healthcare reports (AP/Modern Healthcare, 12/8).
The contraceptive coverage rules, which are being implemented under the Affordable Care Act (PL 111-148), require most employers to offer coverage to their workers. Houses of worship are exempt from the requirement, and not-for-profits that hold themselves out as religious are eligible for an accommodation that ensures they do not have to pay for or directly provide the coverage for their employees.
In September 2013, the Becket Fund for Religious Liberty filed a class action suit against the rules on behalf of several organizations. The suit argued that under the accommodation for religiously affiliated employers, the not-for-profits "would be required to actively facilitate and promote the distribution of these [contraception] services in ways that are forbidden by their religion."
In December 2013, Supreme Court Justice Sonia Sotomayor granted a temporary injunction against the rules to the Little Sisters of the Poor Home for the Aged in Colorado and more than 200 other Catholic not-for-profits that use the same health insurance provider (Women's Health Policy Report, 1/2). The Supreme Court extended the injunction in January (Women's Health Policy Report, 1/27).
Separately, U.S. District Judge Stephen Friot granted a preliminary injunction against the rules in December 2013 to four Oklahoma universities while their suit against the mandate is pending. The universities include Southern Nazarene University, Oklahoma Baptist University, Mid-America University and Oklahoma Wesleyan University (Women's Health Policy Report, 1/2).
On Monday, attorneys for the Little Sisters and for the universities argued that the accommodations still violate their religious beliefs because they must sign a form indicating they oppose contraceptives and granting a third party the authority to cover them. The groups said filling out the form makes them complicit in covering the contraceptives (AP/Modern Healthcare). HHS in August announced an additional way to obtain the accommodation, in which not-for-profits that hold themselves out as religious can send a letter to HHS stating that they object to offering contraceptive coverage in their health plans (Women's Health Policy Report, 11/20).
Greg Baylor, an attorney for Southern Nazarene University, said the requirements are "morally problematic," adding, "There are plenty of other ways the government could put (emergency contraception) in the hands of the people without us" (AP/Modern Healthcare, 12/8).
For example, Mark Rienzi, a lawyer representing the Little Sisters, said the federal government could create direct pay mechanisms, such as tax credits, to provide contraceptive coverage for employees whose employers refuse to cover contraception on religious grounds (Verlee, Colorado Public Radio, 12/8).
Meanwhile, Adam Jed, an attorney with the Department of Justice, said the exemption form does not place a significant burden on the groups' religious rights. He contended that the government would essentially have to act like a "detective agency" to find out why a given organization is not providing coverage if dissenting groups are not required to perform any action indicating their decision (AP/Modern Healthcare, 12/8).
Jed also said the Supreme Court has found that the federal government has a compelling interest in ensuring that female employees obtain contraceptive coverage at no additional cost (Colorado Public Radio, 12/8).
Judges Focus on 'Substantial Burden'
According to AP/Modern Healthcare, the judges hearing the case focused on whether the accommodation places a "substantial burden" on the plaintiffs' religious freedom.
They did not indicate how they might rule in the case, AP/Modern Healthcare reports. However, the 10th Circuit ruled last year that certain for-profit companies could be exempted from the contraceptive coverage rules if their owners had religiously based objections to contraceptives (AP/Modern Healthcare, 12/8).