Eighth Circuit creates circuit split on whether contraceptive accommodation violates RFRA. Next stop, Supreme Court

 Eighth Circuit contraception appeal

The Affordable Care Act exempts religious employers from the contraceptive mandate. Its regulations also provide an accommodation for certain religious organizations that object to the contraceptive mandate but don’t qualify for the all-out exemption: the organization must fill out a form certifying that it’s a religious nonprofit entity and that it has religious objections to the mandate. The organization then sends that form to the administrator of its health plan or to the government directly. The administrator then covers contraceptive benefits without involving the employer in that process. 

Across the country, religious organizations have challenged this accommodation, claiming it violates RFRA’s protections for religious liberty. RFRA provides that the federal government can’t substantially burden religious exercise unless it can show that the burden is the least restrictive way of furthering a compelling interest of some kind. 

Usually, RFRA plaintiffs are requesting an accommodation for religious belief. The interesting wrinkle to the current challenges is that they are objecting to an accommodation. The challengers say that the accommodation violates their religious beliefs because it makes them complicit in providing contraceptives. The form they must fill out, they say, is what triggers contraceptive coverage. 

Since the Supreme Court decided Hobby Lobby, the federal courts of appeals have unanimously rejected challenges to the contraceptive accommodation. Up until today, that is—because today, the Eighth Circuit decided that the accommodation violates RFRA. 

According to the Eighth Circuit, the other courts erred by failing to accept the religious organizations’ religious beliefs. They instead asked whether, as a matter of fact, the accommodations actually do trigger contraceptive coverage. The other courts agreed with the government that the accommodation doesn’t trigger that coverage because the ACA already imposes an obligation on health-plan administrators to provide contraceptive coverage. By accepting this argument, the Eighth Circuit holds, the other courts effectively rejected the religious organizations’ sincere protestation that the accommodation violates their consciences. It does not matter what actually triggers contraceptive coverage. It matters only that the religious organizations sincerely believe that the accommodation triggers contraceptive coverage. That is enough. So the plaintiffs’ claim that the accommodation substantially burdens their religious practice must be accepted. Note that this analysis seems to treat sincerity and substantial burden as the same issue. 

The Eighth Circuit also concludes that the government can provide contraceptive coverage to the plaintiffs’ employees in less burdensome ways—for example, by making contraceptives available to employees through healthcare exchanges. The accommodation thus violates RFRA, or at least likely violates it, which is enough at this stage (this is a preliminary-injunction appeal).

There is now a circuit split. Only the Supreme Court will be able to sort this out. I expect the Supreme Court will decide this issue sometime before the end of October Term 2015.