D.C. Circuit Upholds Contraceptive Coverage Mandate

Last week, a unanimous three-judge panel of the D.C. Circuit upheld the religious accommodation to the Affordable Care Act's ("ACA") contraceptive coverage mandate (Priests for Life v. HHS, D.C. Cir. No. 13-5368, Nov. 14, 2014). The court held that the accommodation set out by the Department of Labor ("DOL") and Department of Health and Human Services ("HHS") is a simple solution that does not impose a burden for purposes of the Religious Freedom Restoration Act of 1993 ("RFRA").

Specifically, the court held that the religious accommodation does not impose a substantial burden on the religious rights of Priests for Life because all it requires them to do "to opt out is express what they believe and seek what they want via a letter or two-page form." They continued to say that even if the self-certification imposed a burden, it is the least restrictive means to achieve the government's compelling interest in ensuring access to contraceptive coverage.

This is the third circuit court to reject such a challenge to the religious accommodations. The D.C. Circuit also noted that, "Many religiously affiliated educational institutions, hospitals, and social-service organizations have taken advantage of the accommodation, and courts of appeals have uniformly sustained it against challenges under RFRA and the Constitution. See Mich. Catholic Conf. & Catholic Family Servs. v. Burwell, 755 F.3d 372 (6th Cir. 2014); Univ. of Notre Dame v. Sebelius, 743 F.3d 547 (7th Cir. 2014) petition for cert. filed (Oct. 3, 2014) (No. 13-3853)." A petition has been filed to the Supreme Court for consideration of the Notre Dame case and it is expected that this D.C. Circuit decision will also be appealed to the Supreme Court.

D.C. Circuit Decision and Hobby Lobby

The D.C. Circuit puts forward a discussion distinguishing its holding in this case from the Supreme Court's holding in Hobby Lobby. The court explains that the critical difference is that Hobby Lobby is brought by for-profit, closely held corporations, seeking the ability to opt-out of the contraceptive coverage requirements - an accommodation that is already available to the non-profit religious entities in the case before the D.C. Circuit. The D.C. Circuit explained the Hobby Lobby decision as finding that in the absence of an accommodation, the contraception coverage requirement imposes a...