Religious nonprofits argue that the government can provide contraception without their help

In the continuing fight against the contraception mandate imposed by sections 1001 and 1004 of the Patient Protection and Affordable Care Act’s (ACA) (P.L. 111-148), the Little Sisters of the Poor Home for the Aged, Denver, Colorado (Little Sisters) and other organizations have filed a merits brief before the U.S. Supreme Court. According to the brief, if the Supreme Court does not provide the requested relief, the Little Sisters will be subject to millions of dollars in fines for failing to comply with the ACA’s mandate. The brief asserts that the government has other ways to provide contraception coverage without requiring the ministry to violate its sincerely held Catholic beliefs.

Opt-out form and accommodation

Due to objections from some religious nonprofits, HHS decided to offer an opt-out form allowing these nonprofits to notify their insurers or the government to their objection to offering contraceptive coverage. Administrators or insurers then step in and provide the coverage to those employees who want it, without requiring the charity to pay for it. However, the Little Sisters believe that the requirements for opting out of the coverage still impose an undue burden on religion in violation of the Religious Freedom Restoration Act (RFRA) (42 U.S.C. §2000bb). After the Tenth Circuit ruled otherwise and injunctions allowing the organizations to escape the accommodation process were wiped away, the Little Sisters appealed (see Prayers for injunctions go unanswered in appellate review of contraceptive accommodation, Health Reform WK-EDGE, July 15, 2015).

Why us?

The brief takes the position that the government has implemented so many other options for ensuring that contraceptive coverage is provided that nonprofit action is unnecessary. The argument points out that the health insurance exchanges serve to provide coverage to those who do not have access to employer sponsored plans, and that those exchanges should also suffice to provide additional coverage to religious nonprofit employees. In addition, the brief states that other employers have been completely exempted from the requirements, but that religious nonprofits have merely been “accommodated” and therefore required to jump through more hoops. Little Sisters states that it does not object to the provision of contraceptive coverage to its employees and that it is not challenging independent actions of other parties. The organization does, however, protest the requirement that its own health plan infrastructure be used to provide coverage or be subject to penalties.