Secondary Accommodation Survives Another Legal Challenge

Secondary Accommodation Survives Another Legal Challenge July 16, 2015

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.


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