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Courts Agree: ACA Contraception Opt Out Doesn't Burden Religion

By Casey C. Sullivan, Esq. on June 23, 2015 | Last updated on March 21, 2019

Employers who opt out of providing health insurance coverage for contraceptives don't have their religious exercise burdened by those opt out procedures, the Fifth Circuit ruled on Monday. The Circuit joined the Seventh, Sixth, Third, and D.C. Circuits in rejecting a challenge to Obamacare's contraception mandate by religious nonprofit organizations.

Under Obamacare, religious nonprofits can opt out of directly providing contraception to their employees. To do so, they need simply fill out a short form and send to the Department of Health and Human Services for certification. Third parties then provide contraception access. 

Religious groups have said that simply filing out the form "triggers" their participation in contraception and burdens their religious freedom. The Fifth rejected that argument yesterday, as had all other circuit courts who've addressed it.

Who Determines the Burden?

Religious employers in each case asserted that any participation that allowed their employees to have access to contraception burdened their religious beliefs. The central question in these cases: who determines the burden? If a religious litigant claims that something offends their religious practice, is that enough? No, the Fifth held. 

While courts accept the sincerity of one's claimed religious beliefs, it is up to the court itself to decide if they are being impermissibly burdened under RFRA and the First Amendment. The decision puts the Fifth Circuit in line with all other circuit courts to reach the question.

Bowen Decides It

Like its sister circuits, the Fifth analogized the RFRA objections to free exercise cases. Like all circuits except the Sixth, the Fifth relied on Bowen v. Roy to find that the judiciary is the arbiter of whether there is a genuine burden on religious freedom. In Bowen, a father objected to the issuance of a Social Security numbers for his daughter, saying it would "rob her spirit." 

That may be his belief, the Supreme Court held, but "for the adjudication of a constitutional claim, the Constitution, rather than an individual's religion, must supply the frame of reference." The same approach was taken in Lying v. Northwest Indian Cemetery Protective Ass'n, where Native Americans objected to the building of a road on religious grounds.

Hobby-Lobby Is No Help

There have been over 70 lawsuits filed objecting to the ACA's contraception requirement. Almost all of these have relied on Hobby Lobby to support their claims that the contraception requirement -- really, the process of opting out from it -- violates RFRA and their free exercise. 

You'll remember Hobby Lobby as the decision that the owners of closely held corporations could assert RFRA objections to business regulations. But, as the Fifth notes, the Supreme Court never addressed the burden question in Hobby Lobby. It had no need to, since the penalties for noncompliance were so obviously burdensome. Until the Supreme Court rules on the issue, the Fifth said, it's bound by Bowen.

Will the Supreme Court chime in? It doesn't seem to be in any rush to decide the issue, having yet to take up any appeals from other circuits' rulings.

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