PPACA’s Contraception Mandate: The Year In Review

The Patient Protection and Affordable Care Act’s (PPACA’s) (P.L. 111-148) so-called “contraception mandate” has been in effect in modified form since August 1, 2011, but a heated battle regarding exemptions for religious employers is ongoing.  Progress is beginning to be made to establish what effects the law will have on religious employers beginning in 2014.  However, with no definitive answer as of yet, 2013 is shaping up to be a contentious year.

Background

The term, “mandate,” refers to PPACA’s provision requiring employers to offer group health insurance plans that cover preventive medical services, including women’s “contraceptive methods and sterilization methods,” approved by the Food and Drug Administration (FDA).  Employers who do not provide insurance plans face an annual fine of $2,000 per full-time employee; those who do not provide contraceptive coverage face an additional daily tax of $100 per employee.  Grandfathered plans that had at least one person enrolled since March 1, 2010, were exempt from the requirement, but could easily lose grandfathered status through increases in cost-sharing and other common changes.  Not surprisingly, many religious organizations objected to the provision, which conflicted with their religious beliefs.  The government passed an interim final rule in an attempt to accommodate the organizations, but many organizations found the requirements too restrictive.  For example, the rule only applied to organizations that primarily served people of the same religion, a definition too narrow to apply to many groups, including religious hospitals and charities.  The government later created a temporary safe harbor provision that applied to a broader group of non-profit religious organizations, which is set to expire on August 1, 2013.  On March 21, 2012, the government issued an advanced notice of proposed rulemaking (ANPRM) stating its intention to permanently accommodate religious objections to the mandate by requiring insurance companies offering group plans to religious employers to directly provide contraceptive coverage free of charge.  However, as of December, 2012, the government has not issued a proposed or final rule.

Lawsuits by Religious Non-Profits

More than 40 lawsuits were filed in opposition to the law. A majority of courts dismissed cases brought by non-profit, religious organizations for lack of standing or ripeness, classifying their potential injuries as “conjectural,” (Legatus v Sebelius) and “hypothetical,” (Wheaton College v Sebelius) and insisting that potential injuries were not impending because the ANPRM indicated that the government could drastically modify the contraception mandate to eliminate actual harm, (Belmont Abbey College v Sebelius; Diocese of Nashville v Sebelius) or that the issue was not ready for review because safe harbor provisions currently protected the organizations (Zubik v Sebelius).  However, in December, another court refused to dismiss a case against a group of Catholic organizations, noting that their injuries were impending, since the current law would clearly affect them once the temporary safe harbor provisions were terminated and that the ANPRM was nothing more than a promise (Roman Catholic Archdiocese of New York v Sebelius).  Less than two weeks later, an appellate court refused to dismiss Wheaton College and Belmont Abbey College’s appeals.  A government attorney noted at oral argument that “it would never enforce” the mandate against the colleges or similarly situated entities and committed to issuing a final rule to that effect prior to August of 2013.  The court stated that it “would take the government at its word and hold to it.”  It will withhold ruling on the cases, subject to government status reports every 60 days, until such time as a final rule is issued. 

Lawsuits by For-Profit Businesses

Courts have rejected cases brought by secular, for-profit businesses under the Religious Freedom Restoration Act (RFRA), which prevents the government from substantially burdening a person’s religious unless it is the least restrictive means of furthering a compelling government interest, finding that secular institutions are not persons and that they are not substantially burdened by the provision (Hobby Lobby Stores, Inc. v Sebelius).  Some courts have determined, however, that secular or religious for-profit corporations can be considered persons under the RFRA, finding either that the government should use less restrictive means to offer birth control outside of the employment context to avoid burdening an entity’s religious beliefs or that the government’s interest, as applied to a small employer, was not compelling (Legatus v Sebelius, Tyndale House Publishers, Inc. v Sebelius). 

Where Are We Now?

Contraceptive guidelines have been in effect for more than a year, but the contraception mandate is as hotly debated today as it was in 2011.  The year to come may bring us the government’s answer to the religious opposition, but it almost certainly will not eliminate debate.  New rules may allow courts to rule more uniformly–but they may also give opponents new arguments.