A judge from the U.S. District Court for the D.C. Circuit has upheld the new accommodation offered by the Obama administration concerning the contraception mandate for religious non-profit organizations. The court ruled that merely notifying either HHS or their insurance plan administrator that they do not wish to provide contraception coverage was not a substantial burden on the group’s religious freedom.
The regulatory opt out works simply: A religious organization that objects on religious grounds to including coverage for contraception in its health plan may so inform either the entity that issues or administers its group health plan or the Department of Health and Human Services. Delivery of the requisite notice extinguishes the religious organization’s obligation to contract, arrange, pay, or refer for any coverage that includes contraception. The regulations then require group health plan insurers or administrators to offer separate coverage for contraceptive services directly to insured women who want them, and to inform beneficiaries that the objecting employer has no role in facilitating that coverage….
We conclude that the challenged regulations do not impose a substantial burden on Plaintiffs’ religious exercise under RFRA. All Plaintiffs must do to opt out is express what they believe and seek what they want via a letter or two page form. That bit of paperwork is more straightforward and minimal than many that are staples of nonprofit organizations’ compliance with law in the modern administrative state. Religious nonprofits that opt out are excused from playing any role in the provision of contraceptive services, and they remain free to condemn contraception in the clearest terms. The ACA shifts to health insurers and administrators the obligation to pay for and provide contraceptive coverage for insured persons who would otherwise lose it as a result of the religious accommodation.
Even if, as Plaintiffs aver, we must take as dispositive their conviction that the accommodation involves them in providing contraception in a manner that substantially burdens their religious exercise, we would sustain the challenged regulations. A confluence of compelling interests supports maintaining seamless application of contraceptive coverage to insured individuals even as Plaintiffs are excused from providing it. That coverage offers adults and children the benefits of planning for healthy births and avoiding unwanted pregnancy, and it promotes preventive care that is as responsive to women’s health needs as it is to men’s. The accommodation requires as little as it can from the objectors while still serving the government’s compelling interests. Because the regulatory opt-out mechanism is the least restrictive means to serve compelling governmental interests, it is fully consistent with Plaintiffs’ rights under RFRA. We also find no merit in Plaintiffs’ additional claims under the Constitution and the Administrative Procedure Act.
That is precisely the right result. If it goes up, will the Supreme Court uphold this ruling? An open question, of course. But in the Hobby Lobby ruling, the majority clearly said that the government could avoid a constitutional violation for religious for-profits by extending this secondary accommodation for religious non-profits, so this ruling is on very solid ground. Whether the Supreme Court sticks with that or jettisons it quickly remains to be seen.
To be fair, this is pretty much the same thing we want the court to do in the same-sex marriage cases. In Windsor, Justice Kennedy avoided overturning all state laws banning same-sex marriage by saying that this is a matter for the states to handle. We want him to ignore his own ruling and conclude that the 14th Amendment requires marriage equality and therefore there is no states’ rights issue.