8th Cir.: Mandate, accommodation likely not least-restrictive means

The accommodation offered to nonprofit religious organizations not qualifying for the exemption under the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) contraceptive mandate substantially burdens the religious exercise of such organizations 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 Eighth Circuit affirmed the district court’s order granting a preliminary injunction preventing the government from enforcing the contraceptive mandate against nonprofit religious organizations (Dordt College v. Burwell, September 17, 2015, Wollman, R.).

Background

The ACA requires the provision of health care coverage for all FDA-approved contraceptive methods and sterilization procedures, and patient education and counseling for women with reproductive capacity. An exemption exists for religious employers and the exclusively religious activities of any religious order, and an accommodation is 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 either 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

Dordt College and Cornerstone University, nonprofit religious educational institutions offering health care coverage to their employees, raised objections to the ACA’s contraceptive mandate and the accommodation process, arguing that the 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-bb4). They argue that the government is coercing them to violate their religious beliefs by threatening to impose severe monetary penalties unless they provide coverage for the objectionable contraceptivesthrough their group health plans or indirectly provide, trigger, and facilitate the objectionable coverage through the accommodation process. The lower court granted an order preliminarily enjoining the government from enforcing the mandate against Dordt and Cornerstone, and the government appealed.

The court referred to its same-day ruling in Sharpe Holdings, Inc. v. HHS, stating that the parties in the instant case made substantially similar arguments (see Accommodation process substantially burdens religious exercise, in this issue of Health Reform WK-EDGE). In Sharpe, the court wrote that the religious objectors are allowed to “draw a line” regarding the conduct that their religion deems permissible. Because the organizations asserted that their religious beliefs dictated that they abstain from conduct furthering the provision of objectionable contraceptives to employees and plan beneficiaries and because there are a number of less-restrictive methods for the government to make such contraceptives available, the Eighth Circuit in Sharpe affirmed the lower court’s order granting injunctive relief. For the reasons set forth in Sharpe, the court concluded that the contraceptive mandate and accommodation process present a substantial burden on Dordt and Cornerstone’s exercise or religion and that the mandate and accommodation are likely not the least restrictive means of furthering the government’s compelling interests. Thus, it affirmed the lower court’s order granting injunctive relief.

The case is No. 14-2726.