On May 20, 2015, the District of Columbia Court of Appeals denied a rehearing by the entire court of a November 2014 three-judge panel decision on contraceptive coverage under the Affordable Care Act’s preventive mandate. The panel had refused to enjoin the latest federal regulation accommodating the objections of religious organizations to the provision to their employees of contraceptive coverage without cost sharing.
The May 20 decision was issued per curium (by the court) without a written majority opinion. Apparently five (or six) of the eight judges who decided the case supported the denial of a rehearing. The three members of the court who decided the case below (Judges Pillard, Rogers, and Wilkins) wrote a concurring opinion explaining their reasoning for denying a rehearing. Three other judges wrote two separate dissenting opinions (Judge Brown joined by Judge Henderson and Judge Kavanaugh writing for himself), although the case report only identifies Judges Brown and Kavanaugh as voting for a rehearing. Two of the active judges of the court did not participate in the decision.
Although the opinions are quite lengthy, much of the dispute between the judges centers on one point. Under the accommodation promulgated by the implementing agencies in the summer of 2014, religious organizations that object to providing contraceptive coverage must notify HHS of their objection and identify their insurer or third party administrator. HHS will then ensure that the insurer or third party administrator provides contraceptive coverage to employees who want coverage, but the religious organizations do not have to pay for or authorize the contraceptive coverage.
The plaintiffs objected to this arrangement, as they believe it makes them complicit in the provision of contraceptive coverage because they must identify their insurer or third party administrator, which then must provide coverage. The dissenters would have held that the government must accept this belief, and that its failure to do so substantially burdens the religious beliefs of these organizations. The concurring judges, on the other hand, asserted that this is not a question of religious belief, but rather a legal question as to how the law operates. They concluded that the law does not require the plaintiffs to participate in the provision of contraceptives to their employees, and thus does not burden their beliefs.
Since the dissenters concluded that the contraceptive regulation substantially burdened the plaintiffs’ free exercise of religion, they proceeded to consider whether it was the least restrictive means of accomplishing a compelling governmental interest. Judges Brown and Henderson questioned whether a compelling governmental interest was at issue, since employers can escape the requirement by not offering insurance. They also opined that a less restrictive alternative was available in that the government could offer the employees of religious organizations contraceptive coverage through the marketplaces.
Judge Kavanaugh recognized that a compelling governmental interest in providing contraceptive coverage was at issue, citing the opinion of Justice Kennedy, the deciding vote in Hobby Lobby, on this issue. However, he concluded that a less restrictive alternative was available: the government could simply require religious organizations to notify it of their objections and the government could then try to identify the organizations insurer’s or third party administrators. Judge Kavanaugh read earlier interim Supreme Court orders in Wheaton College and Little Sisters of the Poor as supporting this approach.
The Notre Dame Case
In a similar case, on May 20, 2015, the Seventh Circuit federal court of appeals again refused to grant an injunction to Notre Dame University to block access of its students and employees to contraceptive coverage through its insurer and third party administrator. Notre Dame had sued claiming that it was entitled to this relief under the Religious Freedom Restoration Act. The Seventh Circuit had affirmed a district court decision denying Notre Dame an injunction in February of 2014, but the Supreme Court had remanded in March of this year for further consideration in light of its 2014 Hobby Lobby decision, which held that a closely held for-profit corporation was entitled to accommodation of its religious objections to contraception.
In a 2 to 1 opinion written by Judge Richard Posner, the court held again that Notre Dame was not entitled to relief. The court upheld that the current accommodation, which merely requires Notre Dame to notify the government of its objection to providing contraceptive coverage and then requires the government to ensure that the insurer and third party administrator that cover Notre Dame’s employees and students provide contraceptive services without any involvement of Notre Dame; the court said this arrangement does not substantially burden Notre Dame’s free exercise of its religious beliefs, and in any event is the least restrictive reasonable means to serve the compelling governmental interest of ensuring access to contraceptive services.
As it had been instructed to do by the Supreme Court, the Seventh Circuit reviewed the Hobby Lobby decision. It concluded that its resolution of the issue was consistent with the Supreme Court’s discussion of compelling governmental interest and least restrictive alternative considerations.
Judge Posner was joined in his opinion by Judge Hamilton, who examined further Hobby Lobby’ssupport for the court’s decision on the substantial burden, compelling governmental interest, and least restrictive means grounds. Judge Flaum dissented. He would have found that the religious organization accommodation still substantially burdened Notre Dame’s religious beliefs and that the government had not established that there was no less restrictive means to accomplish its goals.
The Rest Of The Landscape
As of this point, dozens of cases remain pending in the courts brought by religious organizations challenging the contraceptive mandate. Earlier this year the Third Circuit court of appeals also upheld the religious organization accommodation. The Supreme Court set aside that decision and remanded the case for reconsideration in light of Hobby Lobby, although the Third Circuit could follow the Seventh and D.C. Circuits and hold that the rule is consistent with Hobby Lobby. The Tenth Circuit late in 2014, in a cursory opinion, held that the plaintiff religious organizations did not have to use the form required by the government, but could simply notify the government of their objection, essentially the approach suggested by Judge Kavanaugh.
Several district courts have also enjoined the enforcement of the latest accommodation, and several appellate courts are considering the issue. The legality of the current accommodations for religious organizations is far from settled, and is likely to again reach the Supreme Court.
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