A Circuit Split on Contraceptives Coverage

Perhaps foreshadowed by the dissent in the 10th Circuit that I wrote about here, the 8th Circuit has now officially launched a circuit split regarding the legal validity of the accommodation that allows modified compliance/objection to the contraceptives coverage mandate.  Unlike the seven other circuits to have considered the question since Hobby Lobby, the 8th Circuit yesterday issued opinions upholding preliminary injunctions in two cases (here and here), thereby preventing the mandate+accommodation from being enforced against the objecting non-profits.

First, the 8th Circuit determined that the accommodation still substantially burdens objectors’ religious beliefs because it imposes significant financial penalties if they refuse to comply with a requirement that they view as violative of those religious beliefs. As I explained previously, I do think the court was right to focus on the monetary consequences of objection, rather than assuming that merely filing the required paperwork for an accommodation does not or cannot actually make objectors complicit in the way they claim it does.

Like SCOTUS in Hobby Lobby, the 8th Circuit then went on to assume that the contraceptives coverage mandate advances a compelling government interest, which is the next step in the analysis under the Religious Freedom Restoration Act once the substantial burden test is met.  So far, so good.  But that’s the end of my agreement.

Where I diverge with the 8th Circuit, and thereby disagree with the outcome in these two cases, is on the point of whether the accommodation is the least restrictive method of achieving that compelling government interest, i.e., the last RFRA step.  SCOTUS determined that it was only a less restrictive alternative compared to outright enforcement of the mandate itself, but abstained from holding that it was sufficient to meet the RFRA test of least restrictive alternative because it was unnecessary to get there in Hobby Lobby once a less restrictive alternative that had not at the time been offered to for-profits was identified.

The 8th Circuit, though, had that less restrictive alternative directly before it, and had to determine whether it was the end of the line in terms of what the government might be able to offer religious objectors to the contraceptives coverage mandate.  On that question, the 8th Circuit determined that other alternatives might be even less restrictive than the accommodation, such as the government providing free contraceptives in the event of employer objection, or simply allowing the objector to notify the government of its objection plainly, without forcing the extra step of also notifying the government of the objector’s insurer in order to allow the government to coordinate access.

There are at least two problems with this approach.  First, if we allow it to “count” as an available alternative for the government to pay for or do whatever objectors don’t want to, then that will always be available, and this component of the RFRA analysis becomes meaningless.  Second, even if we assume that it is appropriate and workable to force the government to play detective to seek out the insurers of objecting employers in order to make sure that those insurers take on their regulatory substitute responsibility to provide free contraceptives, that is not likely to resolve the complicity problem for many objectors. It will just kick the can – objectors will then say that they don’t even want to notify the government of their objection, because the logical consequence is still that the notification triggers a chain of events the end of which conflicts with their religious beliefs.

Really, what the objectors want is an outright exemption – to object and not have to notify anyone, because their objection triggers no further obligations on any other party to provide access to contraceptives.  Of course, that ignores the government’s compelling interest in making sure women do indeed have access to free contraceptives, the issue that courts have just assumed for the sake of argument to date.

Remember, RFRA is supposed to be a balance, not a rule that the religious objector always wins.  I am sympathetic to the religious objectors in this case, but at the end of the day, give and take is needed on both sides.  If the least restrictive alternative analysis devolves into “can’t the government just do it?” then there will be legitimate reason to tighten up the substantial burden analysis, such that perhaps we will no longer be able to be so deferential to claims of complicity.

Here’s a solution: get employers out of health care insurance completely.  Unfortunately, the very same politicians advocating for greater religious accommodation regarding the contraceptives coverage mandate (and in other contexts) reject that idea.  Sigh.

Maybe someone should ask Trump what to do, he’s got it all figured out…

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