8th Cir.: Accommodation process substantially burdens religious exercise

The accommodation offered by CMS under the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) contraceptive mandate substantially burdens the exercise of religion by a nonprofit religious educational institution and is likely not the least restrictive means of furthering the government’s compelling interest in safeguarding public health and ensuring equal access to health care for women, the Eighth Circuit ruled. The court affirmed the ruling of the district court, which granted a motion for preliminary injunction enjoining the government from enforcing the contraceptive mandate (Sharpe Holdings, Inc. v. HHS, September 17, 2015, Wollman, R.).


The ACA requires the provision of health care coverage for all FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity. The ACA excludes religious employers and the exclusively religious activities of any religious order. An accommodation is also available for nonprofit religious organizations that do not qualify for the exemption but have religious objections to the contraceptive mandate. The accommodation requires such organizations to complete a self-certification process by completing and submitting ESBA Form 700 to its insurance issuer or third-party administrator (TPA) or by providing notice to HHS of the organization’s name, the basis on which it qualifies for an accommodation, its religious objections to providing the required coverage, its insurance plan name and type, and its insurance issuer’s or TPA’s name and contact information. The issuer or TPA then provides or arranges payments for the services.

Religious objections

CNS International Ministries, Inc. (CNS) and Heartland Christian College (HCC) are both nonprofit religious educational institutions offering health care coverage to their employees. In accordance with their sincerely held religious beliefs, CNS and HCC opposed the use, funding, provision, and support of abortion and believe that certain contraceptives under the mandate (Plan B, ella, and copper IUDs) are functionally equivalent to abortion on demand. They brought suit against HHS arguing that the contraceptive mandate and the accommodation process impose a substantial burden on their exercise of religion in violation of the Religious Freedom Restoration Act of 1993 (RFRA) (42 U.S.C. §§ 2000bb to 2000bb-4) and the Free Exercise Clause of the First Amendment of the U.S. Constitution. This case is before the Eighth Circuit on appeal of a district court decision granting a preliminary injunction enjoining the government from enforcing the contraceptive mandate against the nonprofit religious organizations.

Substantial burden

CNS and HCC contend that the government is coercing them to violate their religious beliefs by threatening the imposition of severe monetary penalties unless they either directly provide or indirectly provide, trigger, and facilitate the objectionable coverage. They also argue that both ESBA Form 700 and the HHS notification method to apply for the accommodation do “nothing more than coerce [them] into another avenue that violates their religion.” The government asserted that HHS notice does not substantially burden the religious exercise of CNS and HCC because submitting notice does not facilitate the provision of contraceptive coverage. If there is a substantial burden on the exercise of religion, the government argued, it has employed the least restrictive means to accomplish its compelling interest in ensuring access to no-cost contraceptive coverage.

Under RFRA, the government substantially burdens the exercise of religion when it “conditions receipt of an important benefit upon conduct proscribed by a religious faith” or “denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify its behavior and violate his beliefs,” the court wrote. The substantial burden imposed by the government on the religious exercise of CNS and HCC is the imposition of significant monetary penalties if CNS and HCC choose to adhere to their religious beliefs and refuse to comply with the contraceptive mandate or the accommodation regulations.

The court accepted the religious objectors’ description of their religious beliefs and allowed them to “draw a line” regarding conduct that their religion deems permissible. CNS and HCC asserted that their religious beliefs dictate that they abstain from conduct that furthers the government’s regulatory scheme to provide their employees and plan beneficiaries with coverage for objectionable contraceptives. Further, CNS and HCC cited a number of other methods for the government to make contraceptives available to employees, such as through its own health care exchanges. The court found that CNS and HCC established they are likely to succeed on the merits of their RFRA challenge on the grounds that the contraceptive mandate and the accommodation substantially burden CNS’s and HCC’s religious exercise and that the accommodation process is not the least restrictive means of furthering the government’s interests. Thus, the court affirmed the district court’s order granting injunctive relief.

The case is No. 14-1507.