Secondary Accommodation Survives Another Legal Challenge

The 10th Circuit Court of Appeals joined four other circuits in rejecting a claim by a religious non-profit that the exemption granted to them from the contraception mandate in the Affordable Care Act still violated their religious freedom.

The secondary accommodation, as I’ve explained before, allows religious non-profits (and now closely held for-profit corporations as well) to be exempted from the mandate that they include contraception in their group health insurance policies merely by telling the Department of Health and Human Services in writing that they object to it. DHS then contacts the insurance company and has them write a separate rider for those employees who request it to cover contraception at no charge.

But being given an exemption isn’t good enough for them, apparently. In this case, the Little Sisters of the Poor claimed that the mere act of having to inform DHS of their objection to the mandate makes them complicit in allowing their employees to have coverage for birth control. They and many other non-profits have filed RFRA suits asking for…well, I don’t really know what. An exemption from the exemption? It all makes no sense and the appeals court agreed:

The accommodation relieves Plaintiffs from complying with the Mandate and guarantees they will not have to provide, pay for, or facilitate contraceptive coverage. Plaintiffs do not “trigger” or otherwise cause contraceptive coverage because federal law, not the act of opting out, entitles plan participants and beneficiaries to coverage. Although Plaintiffs allege the administrative tasks required to opt out of the Mandate make them complicit in the overall delivery scheme, opting out instead relieves them from complicity…

If plaintiffs could assert and establish that a burden is “substantial” without any possibility of judicial scrutiny, the word “substantial” would become wholly devoid of independent meaning. Furthermore, accepting any burden alleged by Plaintiffs as “substantial” would improperly conflate the determination that a religious belief is sincerely held with the determination that a law or policy substantially burdens religious exercise.

This is likely to be taken up by the Supreme Court in the next term, but in the Hobby Lobby case the majority explicitly said that the secondary accommodation provided a means of achieving the state’s interest in maximizing access to contraception without imposing any substantial burden on religious belief. We’ll see if they stick to that. You can read the full ruling here.

POPULAR AT PATHEOS Nonreligious
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  • Dexeron

    They, of course, have no objection to filling out paperwork to claim their tax-exempt status. Yet somehow filling out paperwork to claim their ACA-exempt status is an undue burden.

    But then, anything short of “the ACA has been repealed” is an “undue burden” on their free exercise, I guess.

  • eric

    As discussed in the previous post on secondary accommodation, I don’t think the conservatives have really thought this one through. They seem to think that if an employing company doesn’t tell HHS they aren’t covering contraception, the employee is going to end up paying for it themselves. But there would still be a statutory requirement for contraception coverage, so that would not happen. Instead, the government would just have to find a way to cover the employee without asking their employer whether it covers them or not. Which would likely involve some solution closer to single payer than the current system.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    We’ll see if they stick to that.

    If they’re moral, they won’t. Then us Moral Americans, having already moved the goalpost from “having to be complicit [via employer coverage]” to “having to be complicit [via letter]” can push it to “having to be complicit [via wages]”. And if that, God willing, works, we can push it to having to be complicit [via taxes]”, keeping subsidized contraception out of the hands of The Poors, then finally “having to be complicit [via government]”, keeping it out of the hands of everybody else.

     

    Then we’ll finally have Religious Liberty in this Christian Nation!

  • xuuths

    The important part is “Plaintiffs do not “trigger” or otherwise cause contraceptive coverage because federal law, not the act of opting out, entitles plan participants and beneficiaries to coverage.”

    The court could also have said “Employees can take their pay and purchase all the contraceptions they want, and you will still have to pay them. You do not have the legal right to dictate how they spend their pay.”

  • colnago80

    Re xuuths @ #4

    Employees can take their pay and purchase all the contraceptions they want, and you will still have to pay them. You do not have the legal right to dictate how they spend their pay

    That’s not entirely true. An employee who is found to be spending part of his pay on heroin or other illegal substances can be fired.

  • Jeremy Shaffer

    In this case, the Little Sisters of the Poor claimed that the mere act of having to inform DHS of their objection to the mandate makes them complicit in allowing their employees to have coverage for birth control.

    You know, the Little Sisters have a point here. See, a few years ago, I informed someone of my objection to murder. Since I did that the police determined I was complicit in the very first murder that came along. Now, to make it worse, every time someone commits a murder- anywhere in the world- I get my sentence increased all because me saying I had an objection to murder makes me complicit to murder.

    At this rate, I’ll never get out of prison.

  • John Pieret

    One of the “arguments” of the Little Sisters is that, if they refuse to pay for contraceptives in their self-funded plan and refuse to notify the DHS, they would be subjected to fines and those fines would be a substantial burden on them. Essentially they are claiming that violating a law that doesn’t impose any more burden on them than filling out a two page form to get an accommodation leads to a substantial burden because they choose to violate it.

    Lewis Carroll would be proud. And one judge went along with them.

    I suppose, if SCOTUS went along with this, that the next step might be to require that all self-providers declare whether they are religious corporations (surely not a burden … or it could be taken from their tax returns) and, unless such corporations confirm in writing that they will provide coverage within 20 days of the beginning of the coverage year, require the third-party administrator to provide it as the law requires.

  • D. C. Sessions

    An employee who is found to be spending part of his pay on heroin or other illegal substances can be fired.

    Nope. An employee who is found to be using heroin etc. can be fired, regardless of where the stuff comes from. Contrariwise, an employee who is spending part of his pay on heroin etc. but not using it (perhaps giving it to someone else) is really only in employment trouble if s/he gets arrested for it.

  • speedwell

    Little Sisters et. al. appear to be arguing that filing the form or report saying that they opt-out is a step in enabling an employee to obtain coverage for contraceptives or other medical treatment with which they disagree. Evidently they are entitled to dodge the requirement by administering their own self-insured medical plan in-house.

    They had better never fire an employee, then. That would be the first step to enabling the former employee to obtain the coverage at issue as the employee of a new firm.