On Thursday, the Eighth Circuit all but assured that major parts of the Affordable Care Act will return to the Supreme Court’s chopping block. This time the issue is whether an accommodation—enabling religious objectors to opt out of offering contraceptive coverage to their employees—itself violates the Religious Freedom Restoration Act (RFRA). The Eighth Circuit ruled for the plaintiffs in Sharpe Holdings, Inc. v. U.S. Department of Health and Human Services, along with a companion case brought by Dordt College. The court concluded that the accommodation substantially burdened plaintiffs’ religious exercise and that the accommodation was not the least-restrictive means of ensuring that the plaintiffs’ employees had contraceptive coverage.
The Eighth Circuit’s substantial-burden ruling is unprecedented. Indeed, the contraception coverage cases appear to be the first time that exempted entities have sued to prevent the government from implementing a religious exemption. Like the other nonprofit organizations challenging the contraception regulations, the plaintiffs in this case are not required to cover contraceptives. All they have to do is provide written notice (to either their plan administrator or the Department of Health and Human Services) that they object to providing contraceptive coverage and wish to opt out. Once they provide that notice, the government arranges for the plan administrator to arrange for contraceptive coverage—at no charge to either the plaintiffs or their employees.
The plaintiffs insist that by opting out of providing contraceptive coverage, they “indirectly provide, trigger, and facilitate that objectionable coverage through the … accommodation process.” Every other federal appeals court to have addressed these challenges—even courts as conservative as the Fifth Circuit—has rejected this argument. Indeed, the plaintiffs are being asked to do what they have already done voluntarily: state, in writing, that they object to providing contraceptive coverage to their employees. And it is the HHS regulations, not the plaintiffs’ written notice, that facilitates the provision of contraceptive coverage to plaintiffs’ employees.