January 20, 2015 — The Obama administration on Thursday asked a federal judge not to grant not-for-profits that hold themselves out as religious and oppose contraception any additional accommodations under the federal contraceptive coverage rules, the Washington Times reports (Howell, Washington Times, 1/15).
The Affordable Care Act's (PL 111-148) contraceptive coverage rules include an accommodation for not-for-profits that hold themselves out as religious and oppose contraception.
The accommodation enables such not-for-profits to notify their insurers or third-party administrators of their objection so the insurers or third-party administrators can facilitate contraceptive coverage for members of their health plans. To claim the accommodation, the not-for-profits may either complete a form to send to the insurers or third-party administrators or send a letter to HHS stating that they object to offering contraceptive coverage in their health plans. HHS announced the latter option in August in an effort to address ongoing court challenges over the rules.
The Roman Catholic Archbishop of Washington and Priests for Life challenged the latest accommodation in court, arguing that the accommodation process continues to force "religious believers to violate their sincere religious beliefs."
In November, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit unanimously ruled that the accommodation does not substantially burden the religious beliefs of the plaintiffs in violation of the Religious Freedom Restoration Act (103-141) (Women's Health Policy Report, 11/25/14). PFL appealed the decision to the full court, arguing that the three-judge panel's ruling violated the Supreme Court's ruling in Burwell v. Hobby Lobby.
According to the Times, PFL does not have to follow the earlier ruling while the appeal is pending.
Government attorneys on Thursday told the appeals court that PFL should not be granted any further accommodations under the contraceptive coverage rules because not-for-profits already are extended several accommodations for which Hobby Lobby, as a for-profit company, was not eligible.
The attorneys said, "The linchpin of the court's 'very specific' holding in Hobby Lobby was the existence of the opt-out alternative afforded to organizations such as the plaintiffs in this case."
The Obama administration also said not-for-profits cannot go beyond opting out of the rules. "On plaintiffs' reasoning, a conscientious objector to the draft can not only ... refrain from serving himself, but can also allege that his religion is substantially burdened if the government drafts a replacement to serve instead" (Washington Times, 1/15).