Contraceptive Coverage Falls, No More: Using Rfra to Limit the Scope of Religious Challenges to the Aca's Contraceptive Mandate
| Citation | Vol. 67 No. 2 |
| Publication year | 2016 |
Contraceptive Coverage Falls, No More: Using RFRA to Limit the Scope of Religious Challenges to the ACA's Contraceptive Mandate
M. Catherine Norman
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Contraceptive coverage1 is a required part of all new insurance plans
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under the Patient Protection and Affordable Care Act (ACA),2 but many employers3 are exempt from this requirement.4 Other employers have challenged the contraceptive requirement on religious grounds. In East Texas Baptist University v. Burwell,5 the United States Court of Appeals for the Fifth Circuit held as follows: (1) the plaintiffs are either automatically exempt from the contraceptive-coverage mandate or eligible for accommodation upon application; (2) the challenged provisions do not violate rights to religious freedom under the Religious Freedom and Restoration Act (RFRA);6 (3) RFRA applies only to the acts of the persons claiming protection under it; and (4) RFRA does not allow religious employers to block third parties from providing contraceptive coverage for their employees.7 This decision fills in the gap left by the United States Supreme Court after Burwell v. Hobby Lobby8 and provides an illustration of the complexity of the American healthcare system, even post-ACA.
East Texas Baptist is a consolidated case, consisting of three separate district court decisions.
A. Relevant Facts and Procedural History from the Trial Courts
1. East Texas Baptist University v. Sebelius. The plaintiffs in East Texas Baptist University v. Sebelius9 are East Texas Baptist University (ETBU), Houston Baptist University (HBU), and Westminster Theological Seminary (Westminster Seminary). ETBU is an educational institution and nonprofit corporation associated with the Baptist General Convention of Texas (BGCT); the BGCT elects nineteen of ETBU's
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thirty-six board members.10 The university charter holds the institution out as a "religious . . . institution of higher education."11 ETBU hires religious faculty, and employees must profess their commitment to God and live in such a way that honors that commitment. ETBU's beliefs and teachings are consistent with the Baptist teachings that life begins at conception and abortion, therefore, kills a human being and is sinful.12 The school is self-insured,13 and the plan, provided through a third-party administrator (TPA),14 excludes emergency contraceptives.15
HBU is also affiliated with the BGCT, as well as the Southern Baptist Convention.16 Like ETBU, HBU requires all employees to believe in God and the Bible.17 HBU employees are insured, through a TPA, under a church health plan18 that does not cover abortions, emergency contraception, "or other drugs and devices which it considers to be abortion causing."19
Westminster Seminary is a graduate institution that teaches a reformed Christianity; the tenets are most often associated with the Presbyterian faith. Employees must belong to a church, believe in the tenets of their faith, and live their lives in accord with those tenets.20
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Similar to ETBU and HBU, Westminster Seminary believes that abortions end human life and are sinful; it objects to abortion, emergency contraceptives, and any contraceptive that prevents a fertilized egg from implantation.21 Employees of Westminster Seminary are insured through Independent Blue Cross of Philadelphia, which included coverage for emergency contraceptives and similar drugs and procedures without the seminary's knowledge.22 The insurance provider refused to remove the coverage from health plans, and after attempts to find a way out of providing such coverage, Westminster Seminary still must pay for certain contraceptives.23
The plaintiffs filed suit in the District Court for the Southern District of Texas. After pleadings, they moved for a preliminary injunction against the government to prevent enforcement of the contraceptive mandate. Following oral arguments, both parties moved for summary judgment.24 The court found for the plaintiffs, granting their request for summary judgment under RFRA and ordered an injunction against the government.25 Under the injunction, the government would not be able to enforce any part of the contraceptive mandate against the plaintiffs or their insurers.26
2. Catholic Diocese of Beaumont v. Sebelius. Catholic Diocese of Beaumont v. Sebelius27 involves, as plaintiffs, the Catholic Diocese of Beaumont and the Catholic Charities of Southeast Texas, Inc. (Catholic Charities). The Catholic Diocese of Beaumont is a non-profit organization of parishes and missions in the Beaumont area. It operates churches, schools, and religious education programs, in addition to providing social service programs, in accordance with the Catholic faith. Through a Christian TPA, the diocese offers a self-insured plan to all eligible
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employees.28 This plan does not cover any contraceptives or abortifaci-ents because the use of such are contrary to Catholic teachings.29
Catholic Charities is a nonprofit organization operating in compliance with the Catholic faith. It provides services for the communities with which it works, exemplifying the Catholic mission to provide aid to the needy. Catholic Charities is considered an entity of the Catholic Diocese of Beaumont because a substantial portion of its annual budget comes from the diocese, and the bishop must ensure that the charity's programs align with Catholic teachings.30 As such, Catholic Charities contends that the self-certification process31 would violate the organization's beliefs because it would authorize contraceptive coverage not currently covered by the chosen insurance policy, and facilitating the provision of contraceptives is contrary to the tenets of the Catholic Church.32
Based on the record compiled at the end of the initial hearing, the plaintiffs requested that the court grant them an injunction.33 The court granted the plaintiffs' request, issuing a permanent injunction against the federal government.34 The injunction prevented the government from enforcing the requirements that (1) the plaintiffs fill out the self-certification form or pay for contraceptive coverage, (2) the plaintiffs' health plans include contraceptive coverage if the self-certification form is not filed, and (3) third-party administrators and insurers must provide contraceptive coverage for the plaintiffs' employees.35
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3. Roman Catholic Diocese of Fort Worth v. Sebelius. The University of Dallas (UD), one of the plaintiffs in Roman Catholic Diocese of Fort Worth v. Sebelius,36 is a private, Catholic institution.37 Although open to all faiths, UD "is shaped by the long tradition of Catholic learning . . . [and] is dedicated to the recovery of the Christian intellectual tradition and to the renewal of Catholic theology in fidelity to the church and in constructive dialogue with the modern world."38 Pursuant to the Catholic faith, the health insurance plan offered to UD employees does not cover contraceptives or abortifacients. UD believes the self-certification process would require it to support the facilitation of contraceptives, thus violating its religious beliefs.39
UD filed suit, seeking a preliminary injunction against the government.40 It wanted the district court to enjoin enforcement of the contraceptive mandate.41 The court was persuaded by the decision in East Texas Baptist University v. Sebelius and adopted that district court's analysis.42 Therefore, the court granted UD its injunction on December 31, 2013, preventing the government from enforcing any part of the contraceptive mandate, including penalties for non-compliance.43
B. Circuit Court
The United States Court of Appeals for the Fifth Circuit consolidated the government's appeals from the three district court cases into East Texas Baptist and issued its decision on June 22, 2015.44 With Judge Jerry E. Smith authoring the opinion, the unanimous decision reversed those of the trial courts and remanded the cases to their respective district courts.45 The Fifth Circuit concluded that the challenged provisions of the ACA do not violate religious freedom rights under RFRA; rather, RFRA applies solely to the acts of persons claiming its protection.46 Moreover, RFRA does not allow religious employers to
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block third parties from supplying contraceptive coverage to employees.47 On November 6, 2015, the United States Supreme Court granted certiorari for East Texas Baptist, and other petitions pending on the same subject, as one consolidated case.48 The Court will be addressing two distinct issues: (1) whether the contraceptive mandate violated sincerely held religious beliefs and RFRA,49 and (2) whether Hobby Lobby is controlling and, if so, whether the mandate can stand under that precedent.50
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A. Free Exercise Under the First Amendment
The First Amendment51 provides that "Congress shall make no law . . . prohibiting the free exercise [of religion]."52 While the right to religious belief is absolute, courts have allowed legislatures to limit the free exercise of religion since the 1800s.53 Particularly, religious practices may be limited when they are contrary to laws of general applicability.54 The general standard is that the government must show that religious practices are a "substantial threat to public safety, peace or order" for the regulation of the practices to withstand judicial scrutiny.55
In Sherbert v. Verner,56 the Supreme Court laid out the test for determining when a court may allow the government to regulate a person's religious freedom (Sherbert test).57 First, the court must determine whether there is a religious exercise at issue.58 Second, the court decides whether enacting and enforcing the challenged legislation places a substantial burden on the...
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