D.D.C.: Nonprofit employer, religious employees not bound by contraceptive coverage requirement

The March for Life Education and Defense Fund (March for Life), an anti-abortion organization, may not be required to provide coverage of contraceptive methods that it believes are abortifacients to its employees under the preventive services provisions of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) and implementing regulations. The limitation of the exemption from the contraceptive coverage requirement to religious organizations violated the equal protection requirement of the Fifth Amendment to the U.S. Constitution, the U.S. District Court for the District of Columbia held . The regulations also violated employees’ rights under the Religious Freedom Restoration Act (RFRA) (P.L. 103-141) (March for Life v. Burwell, August 31, 2015, Leon, R.).

Factual background

The purpose of March for Life is to oppose abortion, and a fundamental tenet is its belief that human life begins at conception, defined as the fertilization of an ovum by a sperm cell. Therefore, it opposed insurance coverage of contraceptive methods that it believes are abortifacients because they may prevent the implantation of a fertilized ovum. Its opposition was based on moral, rather than religious grounds, and did not depend upon belief in a deity. Two employees of March for Life also joined as plaintiffs; they were religiously opposed to health insurance coverage of the same contraceptives, which they believe may cause abortion. March for Life was not eligible for an exemption from the contraceptive coverage requirement because it was not a religious organization within the meaning of the regulations adopted by HHS in 2013 to implement the preventive services requirement of 42 U.S.C. §300gg-13(a).

Equal protection

March for Life argued that it was denied equal protection of the law because its opposition to coverage of the contraceptive methods was based on the belief that human life begins at conception, and the organization only hired individuals who shared that belief. The only distinction between it and the religious organizations that were entitled to exemptions was that its opposition was not grounded in belief in a deity.

HHS contended that the purpose of the exemption to accommodate religious organizations was rationally related to the legitimate government interest in assuring that employers whose workers shared their opposition to the contraceptive coverage mandate would not be penalized. The “rational basis test” of validity of a legal classification is highly deferential. Nevertheless, the court found that the federal regulation exempting religious organizations was a classification based on a belief in a deity. This classification was unrelated to the purpose of the exemption, to excuse from the requirement employers whose employees share their opposition to abortion and certain forms of contraception. The court found that March for Life’s situation was identical to that of the religious organizations that qualified for the exemption.

RFRA claims

The two employees contended that the requirement that March for Life provide coverage of all FDA-approved contraceptive methods violated their rights under the RFRA because the effect of the regulation was to require them to accept coverage that violated their religious beliefs. The government argued that the coverage did not place any burden on their practice of religion because they did not have to use the benefits. The court found that their religious opposition to accepting health insurance coverage that included contraception was sincere and that the government’s argument essentially disputed what the employees’ religious beliefs were. The court distinguished the Priests for Life case (see Minimal paperwork fails to meet substantial burden test for contraceptive coverage, Health Reform WK-EDGE, November 19, 2014), which found no burden on religious practice, because the regulation did not require that employer to participate in the coverage; it noted that employees covered by an employer-sponsored plan are called “participants.”

The court then found that the application of the contraceptive coverage mandate to March for Life was not the least restrictive means of furthering the government’s interest in assuring that contraceptives are available to women who want them. It was significant that the insurance coverage did not come directly from the government, but was purchased by the employer from a private entity willing to sell it.

Free Exercise claims

The court ruled in favor of the government with respect to the employees’ claims that the mandate violated their First Amendment right to Free Exercise of religion. The focus of the mandate was not on religion; it applied generally to employers and its purpose was not to disfavor any religious practice or group.

Administrative Procedure Act

The court found it unnecessary to address the parties’ claims that the regulations were invalid under the Administrative Procedure Act (APA) because they were arbitrary, capricious, or inconsistent with the law. The court reasoned that the focus of the APA is on the integrity of the regulatory process, while the claims of March for Life and its employees against the government related to the substance of the regulations.

The case is No. 14-cv-1149 (RJL).