The Supreme Court’s decision almost a year ago in Burwell v. Hobby Lobby addressed just one element of the conflict between the Affordable Care Act’s requirement that women receive contraception and some religious employers’ religious objections to contraception. In that case, the question was whether a for-profit company could be forced to pay for methods of contraception that violated its faith. The Court’s answer was that the First Amendment rendered no relief for them, but that the Religious Freedom Restoration Act (“RFRA”) did. The ACA and the Obama Administration had provided no religious accommodation for such companies.
That left open the question of the accommodation the ACA and Obama Administration crafted for religious nonprofits like the University of Notre Dame, Geneva College and Priests for Life. They are not required to pay for contraception to which they object themselves, but to opt out they must either sign a form or write a letter telling the government of their objection. (The letter option was added by HHS after the Supreme Court vacated a decision that had held the form violates RFRA as explained here.) I will call this the “form or letter requirement.”
Their communication then triggers a requirement that the insurer or third-party administrator cover the cost of the contraception and that the government reimburse the administrator 115 percent. Thus, the religious nonprofit need not pay for the contraception but the women can still obtain it without at no cost to themselves.
In East Texas Baptist University v. Burwell, the Fifth Circuit this week joined other circuits addressing the issue when it held that the form or letter requirement does not impose a “substantial burden” on the nonprofits’ religious faith. Therefore, RFRA did not immunize them from the requirement of notifying the government of their beliefs.
The Fifth Circuit is in line with the other appellate courts to rule that RFRA does not disable the form or letter requirement, joining the D.C. Circuit and Seventh Circuit. The Third Circuit and Sixth Circuit agreed, though Justice Alito stayed the Third Circuit decision and the Supreme Court vacated the Sixth Circuit decision. The Eleventh Circuit had gone the other way, but the decision is suspect because it was reached before HHS revised its regulations from requiring a form to permitting as an alternative a letter to the same effect. The First, Second, Fourth, Eighth, Ninth, and Tenth Circuits have yet to rule on the issue, though numerous cases are pending.
The Fifth Circuit’s Solid Reasoning
The religious nonprofits’ theory was that signing the form triggers a series of events and that if any event that follows violates their faith, their faith has been substantially burdened. The Fifth Circuit, in an opinion written by Judge Jerry Smith, knocked down their fact claims and legal arguments.
First, the plaintiffs argued that signing the form means that they are responsible for the contraceptive access. The court soundly rejected this notion. In fact, the contraceptive mandate comes from the law’s requirements, and “the plaintiffs cannot authorize or trigger what others are already required by law to do.”
Second, the plaintiffs said that even providing the names and contact information for the third party administrators means they are authorizing the contraception payments. The court again rejected this reasoning: “Providing the names and contact information facilitates only the plaintiffs’ exemption, not contraceptive coverage.”
Third, the plaintiffs argued that the form or letter requirement means their plans would be the means by which contraception is provided. Again, the court poked holes in this self-absorbed way of interpreting the requirement. In fact, the accommodation prohibits their plans from being the vehicle for payment: “Once the plaintiffs apply for the accommodation, the insurers may not include contraceptive coverage in the plans.”
Finally, the court rightly pointed out that the accommodation takes the objectionable medical service out of their contracts, gives them a vehicle for their disapproval as opposed to endorsement, and whatever happens after they fulfill the form or letter requirement does not involve them.
The plaintiffs also had argued that in practice they would have to pay for contraception and, therefore, their religious objection to contraception would be substantially burdened by the form or letter requirement. The court held that issue was speculative and hypothetical at this point and, therefore, not ripe for judicial review.
The Fifth Circuit’s Reasoning Undergirds the Rule of Law and Government Neutrality for All Citizens
These cases are deeply important, because those fighting the form or letter requirement are arguing for the right to impose their faith on other citizens by controlling how the government operates. Government neutrality is at stake. As the Fifth Circuit explained:
The plaintiffs’ religious beliefs forbid them from providing or facilitating access to contraceptives, but the requirement that they enter into the contracts does not force them to do so. 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.
Judge Smith’s decision correctly relied upon the Supreme Court’s First Amendment decisions in Bowen v. Roy and Lyng v. Northwest Indian Cemetery Protective Assn. The “substantial burden” element of the RFRA formula is the one aspect of RFRA that is actually taken directly from prior First Amendment law (unlike just about everything else in RFRA, as I discuss here). In each of those cases, the Court held that religious believers had failed to prove a substantial burden and could not dictate government practices or decisions. In the first, a believer could not refuse to obtain a social security number for a child and in the second, believers could not block the federal government’s plans for government land.
RFRA often makes those negatively affected by a believer’s actions melt into the background, which happened in Hobby Lobby. This decision—and its echo across other circuits—at least sends a message that the federal government remains the government of all of the people and not a tool by which a believer can force public policy to reflect his beliefs to the detriment of others.
This is also a blow for a more neutral political process. These believers lost the legislative and political battle on the form or letter requirement. While RFRA gave them a second bite of the apple, at least this time it did not nullify the political process.
Now, if religious nonprofits persist in fighting the fact that their employees have access to contraception coverage, and perhaps hire economists to try to show that in practice some tiny portion of their payments for coverage somehow pay for contraception, RFRA will rise again. In that circumstance, which is the scenario found to be unripe by the Fifth Circuit, RFRA may well put judges once again in the position of being activist judges who act as superlegislatures and unilaterally direct public policy à la Hobby Lobby.