M.D. Pa.: Take the coverage! Court declines to apply moral objection to contraceptives

The government’s interest in ensuring that contraceptive methods are available is compelling, even though the benefit is not achieved for all members of the population and may be provided to some who have a moral objection. The U.S. District Court for the Middle District of Pennsylvania dismissed Real Alternatives, Inc.’s case against HHS, which alleged that the contraception mandate found in sections 1001 and 1004 of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) goes against its moral beliefs and that a pro-life health insurance option should be made available. The court did not find that the mandate violated Real Alternatives’ equal protection rights and that a moral objection to such coverage was not entitled to the same protection as the exercise of religious freedom (Real Alternatives, Inc. v. Burwell, December 10, 2015, Jones, J.).

Real Alternatives

The company is a non-profit organization that seeks to offer alternatives to abortion services in Pennsylvania, Michigan, and Indiana. It hires social services agencies as subcontractors to administer its programs, such as pregnancy and parenting support. It requires these subcontractors to refrain from recommending or providing all IUDs and hormonal birth control methods. It excluded contraception coverage from its health plan starting in 2008, which the insurer cancelled in 2014. Real Alternatives’ current plan cannot be grandfathered under the ACA, and the company filed suit seeking a court order permitting it to obtain “morally acceptable coverage” that did not include contraceptive care. Real Alternatives states that it does not hold itself out to be a religious organization.


Real Alternatives has only three full-time employees, all males, who state that they share in the company’s beliefs regarding contraception. They all claim moral and religious objections to participating in a health plan that provides contraceptive coverage. Their employee coverage extends to their wives and seven children collectively.

Equal protection

Real Alternatives argued that requiring it to offer contraceptive coverages violates its Fifth Amendment right to equal protection. An equal protection claim requires showing that the government has treated one party differently from a similarly situated party with inadequate reasoning. Real Alternatives states that its objections to the contraceptive mandate are purely moral and based on non-religious philosophies. The court found that because the contraceptive mandate does not burden a fundamental right (religion), the proper level of scrutiny would be a rational basis review. A statute does not violate the equal protection clause incorporated through the Fifth Amendment’s due process clause if it bears a rational relationship to a legitimate purpose.

Religious employers versus other employers

HHS and other government agencies responsible for the ACA’s administration provide an exception to the contraceptive mandate for religious employers. Real Alternatives argued that such an exception fails the rational basis test. The agencies have stated that religious employers are more likely to employ those of the same faith and those employees would be less likely to use contraceptive services. The court agreed with Real Alternatives, as any employer may discourage the use of these services and seek to employ those who agree, not just religious employers.

However, the court found that HHS’ second justification that the employer exemption due to the effect on the beliefs of religious employers if contraceptive coverage services were required in their health plans survived rational basis review. Protecting religious freedom has long been legitimate government interest. The court stated that it did not question Real Alternatives’ sincerely held beliefs, but that it detected a difference between philosophical views and large secular organized moral systems that function similar to a religion without belief in a deity.

Contraceptive mandate and federal laws

Real Alternatives attacked the contraceptive mandate on the grounds that it runs contrary to various federal laws, such as the Administrative Procedure Act (APA) (P.L. 79-404), the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act (P.L. 110-329), the Church Amendment (42 U.S.C. §300a-7(d)), the ACA itself, and the Religious Freedom Restoration Act (RFRA) (P.L. 103-141). The court found that the religious exemption was not an arbitrary and capricious classification under the APA.

Additionally, the argument under the Weldon Amendment failed to state a claim. This amendment prohibits the provision of funds to a federal agency if it subjects a health care entity to discrimination on its treatment of abortions. Federal law has never recognized emergency contraceptives to be the same as abortion. This extends to Real Alternatives’ attack on the ACA, which states that a qualified health plan is not required to provide coverage of abortion services. The court found that the term abortion was not intended to include emergency contraception.

The Church Amendment, which provides that no one will be required to assist in an HHS program if it violates religious beliefs or moral convictions, only applies to grant funding for voluntary family planning projects. There is no connection between the three employees and such activity. Finally, RFRA could only apply to the employees (who claim religious beliefs) and not to Real Alternatives, which only objects on moral grounds. However, the employees have not indicated that they would be able to find individual coverage that did not contain contraceptive benefits, because insurers are not covered by an exemption. The court found that instituting contraceptive coverage for those who do not desire to use it is not a substantial burden on religion under RFRA.

According to the court, other services covered by ACA plans could be objectionable under any number of religions, but allowing individuals to demand that a health plan be tailored to their believes “would render the health care system totally unworkable.” In addition, providing contraceptive coverage furthers a compelling government interest in promoting public health and gender equality in the least restrictive way possible. The court also expressed concerns about “an issue of great sensitivity,” in providing contraceptive coverage to entire families covered under an employer’s plan. It noted that there is no guarantee that every member of the family would agree with the decision to opt out of contraceptive coverage, and that each member should be able to maintain her ability to utilize the coverage. The court found that due to these and other reasons, the government’s desire to implement a broad contraceptive mandate is compelling.

The case is No. 1:15-cv-0105.