Mixed News In The World of Contraception Accommodations for Religious Non-Profits

Sometimes you can get good news and bad news about the same subject on the same day. This was one of those days.

First, the good news: In the case of Michigan Catholic Conference & Catholic Family Services v. Burwell, the Sixth Circuit Court of Appeals has decided to reaffirm its earlier position that the ACA contraceptive accommodation for religious non-profits does not violate RFRA. The Supreme Court had vacated the Sixth Circuit’s initial decision for reconsideration in light of Burwell v. Hobby Lobby Stores, just like in University of Notre Dame v. Burwell. And just like in the Notre Dame case, the court decided today that it got the law right the first time around.

From the opinion:

"The Tenth Circuit’s discussion of the opt-out process also strongly supports our analysis. The court stated that the '[p]laintiffs are not substantially burdened solely by the de minimis administrative tasks this involves.' Id. at *30. 'All opt-out schemes require some affirmative act to free objectors from the obligations they would otherwise face.' Id. 'Having to file paperwork or otherwise register a religious objection, even if one disagrees with the ultimate aim of the law at issue, does not alone substantially burden religious exercise.' Id. The point of the accommodation is to insulate objecting entities from providing, paying for, or facilitating access to contraception. The process for obtaining the accommodation is not burdensome, as it requires no more effort than would be required for any routine administrative task.

These cases highlight the multitude of reasons why Plaintiffs’ arguments in this case fail: because there is an underlying federal obligation to provide contraceptive coverage, because the opt-out is hardly a burden at all (much less a substantial burden), because the whole point of a federal religious accommodation is to accommodate the beliefs of the religious organization with the valid legislative policy goals set forth by Congress. The consistent reasoning of our sister circuits supports this conclusion. "

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In short: signing a paper that would allow the federal government to provide contraception coverage for you does not constitute a burden on religious non-profits. It's designed to accommodate religious beliefs. In all, this marks seven cases that have ruled against the complaints of non-profits who seek to deny their female employees access to contraception.

(Read our friend-of-the-court brief for this case.)

Now, the bad news: The Tenth Circuit Court of Appeals has opted to allow the Little Sisters of the Poor to avoid the ACA's contraception mandate and its accompanying fines until the Supreme Court decides whether or not to take up their appeal.

From The Washington Times:

"The Little Sisters of the Poor Home for the Aged is among several nonprofit plaintiffs who’ve asked the justices to hear them out next term, saying the Obama administration hasn’t done enough to absolve them from providing birth control they find sinful, including morning-after pills that Catholic groups equate with abortion...

The groups haven’t persuaded top federal judges, though. When the U.S. Court of Appeals for the 10th Circuit turned away the Little Sisters last month, it became the fifth appellate court to reject religious nonprofits’ challenge to the Obama administration policy.

Even so, the 10th Circuit said Friday the nuns would be shielded from the mandate until the Supreme Court reviews their petition. If it accepts the case, the stay of the mandate will remain in place until the justices rule."

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While this is not a reversal of its own decision, the federal court has certainly made the waiting period longer for employees to access their lawful right to contraception. We look forward to seeing the Supreme Court's decision.