The case is Catholic Health Care System v. Burwell, decided on August 7. Under the Affordable Care Act, employers have to provide coverage for all FDA-approved contraceptive methods. But religious organizations can opt-out of these requirements. In order to opt-out, they have to complete a one-page form and self-certify their religious objections. If that happens, then the employees get their contraceptive coverage from other sources without cost, through alternative mechanisms established by government regulations. In other words, Obamacare includes a built-in accommodation for religious organizations.
Plaintiffs challenge that accommodation provision under the Religious Freedom Restoration Act of 1993, which says the government needs a compelling interest for any law or rule that substantially burdens the exercise of religion. The compelling interest test is the kiss of death, so if the Court finds the opt-out provisions triggers the compelling interest test, then the plaintiffs win. The Court of Appeals writes:
Plaintiffs believe that by submitting the opt-out notification to the government or their third-party administrators, they are indirectly facilitating the provision to their employees of products and services that have contraceptive and “abortion-inducing” effects, an act which violates their religious beliefs. Thus, although the accommodation shifts the burden of providing contraceptive coverage to others once Plaintiffs avail themselves of the opt-out mechanism, Plaintiffs nevertheless contend that the regulatory scheme imposes a substantial burden on their exercise of religion.In other words, even filling out the form under the religious accommodation provision facilitates the use of contraceptive services for plaintiff's employees. The Court further summarizes plaintiffs' objections this way:
Plaintiffs further argue that the objectively insubstantial burden of filing either the opt-out form or the letter to HHS is substantial because it renders them complicit in bringing about consequences forbidden by their religion, namely the provision of contraceptive coverage by the government and third parties. Although third parties ultimately bear the burden of providing contraceptive coverage, Plaintiffs contend that their participation is essential to this coverage. Plaintiffs argue that a substantial burden exists because the submission of the self-certification form or letter “triggers” or “facilitates” the provision of objectionable contraceptive services. Under this view, Plaintiffs’ acts of self-certification as religious objectors ultimately result in their third-party administrators providing contraceptive coverage to their employees.
In other words, since plaintiffs do not believe in these contraceptive services, filling out the form in itself violates their religious beliefs. The Court of Appeals (Pooler, Leval and Chin) holds as follows:
Accurately understood, the opt-out mechanism imposes on Plaintiffs only the de minimis administrative burden associated with completing the self- certification form or the alternative notice.” Viewed objectively, completing a form stating that one has a religious objection is not a substantial burden. To be sure, the notification required of Plaintiffs here certainly imposes some burden. But any imposition from completing the form falls well below the degree of substantial burdensomeness that has historically entitled a RFRA plaintiff ... to accommodation, or triggered strict scrutiny analysis.
Plaintiffs also argue that filling out the opt-out form renders them complicit in bringing about consequences forbidden by their religion, namely the provision of contraceptive coverage by the government and third parties." The Court rejects this argument also, stating that "a religious objector’s submission of the form or letter does not, as a legal matter, trigger or facilitate the provision of contraceptive coverage." Judge Pooler further explains:
Rather, contraceptive coverage occurs through operation of federal law. When third parties step in and provide contraceptive coverage after Plaintiffs opt out, they do so not because Plaintiffs have opted out, but rather because federal law requires or incentivizes them to provide such coverage. The accommodation functions not as a “trigger,” but rather as a means of identifying and exempting those employers with religious objections. Once Plaintiffs indicate their desire to have no involvement in the provision of contraceptive coverage, the government steps in and acts to ensure contraceptive coverage without any participation by Plaintiffs. Thus, Plaintiffs’ decision to opt out is not the cause of the ultimate contraceptive coverage; rather this coverage happens in spite of them.