We’ve heard enough: court draws the line at accommodation, denies rehearing

Priests for Life, a nonprofit organization, was denied a rehearing en banc regarding its objections to the accommodation allowing religious non-profits to pass the burden of providing contraceptives to which they object on religious grounds to a third party. The U.S. Court of Appeals for the District of Columbia Circuit found that the accommodation allows religious nonprofits to continue in the manner they operated regarding contraceptives prior to the implementation of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) and its contraception mandate. Two judges provided a lengthy dissent regarding why they would rehear the case in light of the Supreme Court’s ruling in Burwell v. Hobby Lobby (Hobby Lobby) (Priests for Life v. HHS, May 20, 2015, Pillard, N.).


Although Hobby Lobby provided an exception to the contraception mandate for closely held corporations that object to birth control, particularly IUDs and emergency contraception, no such exception was given to religious nonprofits. Nonprofits have been afforded an accommodation, which allows them to pass the burden of managing and paying for contraceptives to insurers or third-party administrators. This accommodation was given in order to remove a nonprofit’s direct involvement in the provision of contraceptives, while still allowing employees of the organizations to have access to the medications.

 Notre Dame

Some nonprofits have chafed against this accommodation, arguing that that the requirement to fill out EBSA Form 700 places a substantial burden on the exercise of religion because the submission “triggers” coverage of contraception (see Notre Dame signs EBSA Form 700-Certification, not substantially burdened, February 26, 2014). Courts such as the U.S. Court of Appeals for the 7th Circuit have specifically addressed this issue, finding that the financial burden shifts away from the university and on to the government when the form is submitted. On May 19, 2015, the 7th circuit went further and denied the University of Notre Dame’s petition for a preliminary injunction barring even the insurer and administrator from providing the contraceptives to students and employees. The 7th circuit held that the accommodation fulfilled its purpose in removing Notre Dame’s involvement in providing contraceptives (see Injunction junction need not function, contraceptive accommodation is enough for 7th circuit, May 21, 2015).

 Legal, not religious

The court in this case found that the dispute at hand was not about religious beliefs, but about how the law functions. Priests for Life argued that their act of shedding responsibility for providing coverage for contraception allowed the coverage to become available to employees, which goes against Catholic beliefs. The court disagreed, stating that the accommodation allows nonprofits to “arrange for contraception to be excluded from the health insurance coverage they provide,” which is what the nonprofits did prior to the ACA. Now, due to the ACA’s mandate, women receive contraception coverage under a separate plan not funded by the employer. The court felt that the dispute was not based on religious beliefs, but rather how the law operates, because contraceptive coverage will be provided regardless of the nonprofit’s objections. By deciding the dispute on “which party is right about how the law works,” the court said that there is no violation of the Religious Freedom Restoration Act (RFRA) (42 U.S.C. §§2000bb et seq.), which protects the exercise of religion.


Two dissents accompanied the opinion. The first, written by Judge Brown and joined by Judge Henderson, asserted that the majority failed to apply RFRA’s protections, which provide that the government may only substantially burden the free exercise of religion in pursuit of a compelling interest, and by the least restrictive means possible. The dissenting judges believed that court was not authorized to scrutinize religious belief, and that “the panel trespassed into an area of inquiry Supreme Court precedent forecloses.”

Judge Kavanaugh’s dissent stated that the panel contradicted the Hobby Lobby decision, which stated that regulations requiring organizations to act contrary to their religious beliefs or pay significant fines substantially burdens religion. Judge Kavanaugh stated that the case comes to the “least restrictive means” question under RFRA, and pointed to other decisions such as Wheaton College v. Burwell (Wheaton College) in which the Supreme Court decided that a religious organization does not have to identify or notify its insurer of its objections and can instead notify HHS, which then takes the appropriate steps to ensure that contraceptive coverage is provided. This dissent focused on the “extremely strong signals” provided by the Supreme Court in cases like Wheaton College, and argued that allowing organizations to provide notice to HHS directly was a less restrictive way to further the government’s interest in providing contraception.