Religious nonprofits’ objections percolated, states ask Supreme Court to brew decision

Sixteen states have filed an amicus brief asking the U.S. Supreme Court to grant certiorari in Houston Baptist University v. Burwell, a case filed by religious nonprofits challenging the Obama Administration’s accommodation to the Patient Protection and Affordable Care Act’s (ACA) (P.L. 111-148) contraception mandate. The states argue that circuits are split as to interpretations of Hobby Lobby and its effect on the accommodation, with some courts misinterpreting the Religious Freedom Restoration Act’s (RFRA) (42 U.S.C. §2000bb et seq.) substantial burden inquiry to evaluate whether a religious conviction has a substantial justification. In their opinion, “the issue has sufficiently percolated in the lower courts” and is ready to be adjudicated by the High Court. The brief argues that the states have an interest in protecting religion and in ensuring that the beneficial work of religious nonprofits will continue.


Religious entities that do not qualify as religious employers, including religious nonprofits, are not exempt from the contraception mandate. However, they can seek an accommodation by either executing an Employee Benefits Service Administration (EBSA) Form 700, certifying that they are nonprofit entities holding themselves out as religious organization opposed the provision of contraceptive services, or by notifying HHS in writing with the name of the organization, the nature of the objection, and certain plan information. The nonprofits’ third-party administrators then become responsible for the provision of contraception.

Underlying lawsuit

Religious nonprofits led by Houston Baptist University filed suit against HHS, alleging that the accommodations substantially burdened their religious exercise by making them complicit in the provision of certain FDA-contraceptive services that the entities consider abortifacients. The Fifth Circuit Court of Appeals overturned a trial court decision in the nonprofits’ favor by finding that they did not establish that the mandate or the accommodations substantially burdened their religious exercise or that they could make such a showing (see Mandate withstands religious challenge, providing contraceptives has ‘nothing to do with it’, Health Reform WK-EDGE, June 24, 2015). Houston Baptist and two co-plaintiffs filed a petition for certiorari with the Supreme Court, challenging the Fifth Circuit’s application of the RFRA and the High Court’s decision in Hobby Lobby (see Religious universities seek support from a higher authority, Health Reform WK-EDGE, July 15, 2015).

Amicus brief

The states filing the brief described their interest in ensuring that “courts do not demean religious beliefs.” They extolled the virtues of religious nonprofits and noted that preventing them from adhering to their religious beliefs could threaten their beneficial work. The brief argues that the RFRA substantial burden inquiry requires courts to determine whether the government has coerced a person to violate sincerely-held religious beliefs and whether that coercion is substantial. However, it maintains that some courts have misinterpreted that inquiry and instead judged whether the religious conviction itself has a substantial justification. In short, the states allege that the accommodation offered by the government requires the nonprofits to violate their religious beliefs, since the execution of EBSA-700 is a prerequisite to the provision of abortifacients, and that they will be faced with “draconian penalties” for noncompliance. The states urged the Supreme Court to hear the case, as “delay will not yield further clarity.”