11th Circuit Upholds Federal Contraceptive Mandate in Split Ruling

11th Circuit Upholds Federal Contraceptive Mandate in Split Ruling John Disney/Daily Report Judge Jill Pryor

A federal appellate panel in Atlanta on Thursday rejected 2-1 separate challenges to the Affordable Care Act’s contraceptive mandate, holding that requirements that religious organizations formally “opt out” of coverage does not substantially burden their religious exercise or violate their right to religious freedom.

Judge Jill Pryor of the U.S. Court of Appeals for the Eleventh Circuit wrote the opinion in which U.S. Circuit Senior Judge R. Lanier Anderson concurred. Judge Gerald Tjoflat authored a 55-page dissent.

While ruling against the plaintiffs—the Eternal Word Television Network in Alabama, the Roman Catholic Archdiocese of Atlanta and its affiliated Catholic Charities, and the Roman Catholic Diocese of Savannah—the panel stayed enforcement of the contraceptive mandate by the U.S. Department of Health and Human Services because other consolidated cases challenging that mandate are now pending before the U.S. Supreme Court. The high court is expected to hold oral argument on the cases on March 23.

The panel majority rejected the religious organizations’ claims that federal regulations—intended to accommodate religious objections while providing contraceptive coverage to women who sought it—still violated the groups’ freedom to practice their religion.

The regulations allow organizations that claim they are opposed to contraception on religious grounds to opt out of insurance coverage of contraception, but they require notification of that decision. The plaintiffs objected to the opt-out requirements, arguing that by issuing the notification they provided an alternate route for women to obtain contraceptives, making the organizations complicit in doing something their religious beliefs prohibit.

Wrote Pryor: “Congress included the contraceptive mandate in the ACA to improve women’s health and public health generally. There is no evidence whatsoever that the mandate was enacted in an attempt to restrict religious exercise. To the contrary, in implementing the contraceptive mandate the departments have attempted to accommodate religious interests by granting exceptions for religious employers and those organizations with religious objections to providing contraceptive coverage.”

Pryor also held that the federal regulations “do not discriminate between religious denominations or infringe upon or restrict conduct because of its religious motivation.” Rather, she continued, “the procedures distinguish among organizations on the basis of their tax status.”

Tjoflat disagreed, referring to regulations governing the contraceptive mandate as “the government’s efforts to force [the plaintiffs] to participate in a complicated regulatory scheme.”

“Doing so, these parties sincerely believe, would make them complicit in violating the sanctity of human life,” he said.

Under what Tjoflat labeled as “the demanding scrutiny” of the federal Religious Freedom Restoration Act (RFRA), he said, “The government cannot put religious believers to the choice of abandoning the commands of their faith or paying massive penalties unless it can show that it has no other way of achieving a compelling interest.”

And that, he concluded, the federal government had failed to do.

Federal regulations give the government discretion to exempt from the contraceptive mandate certain group health plans established or maintained by religious employers. The government uses the definition of what constitutes a church for tax exemption purposes as the basis for the exemption and also required that any organization seeking an exemption have a religious purpose and serve and employ primarily people who share the organization’s religious tenets.

In her 86-page ruling, Pryor also concluded that “it is for the courts,” not faith-based organizations, “to determine objectively what the regulations require and whether the government has, in fact, put plaintiffs to the choice of violating their religious beliefs by seeking the accommodation or incurring a substantial penalty.”

“We reject a framework that takes away from courts the responsibility to decide what action the government requires and leaves that answer entirely to the religious adherent,” she wrote. “Such a framework improperly substitutes religious belief for legal analysis regarding the operation of federal law. Indeed, the plaintiffs have identified nothing in [the federal Religious Freedom Restoration Act] or case law that allows a religious adherent to dictate to the courts what the law requires. The plain language of RFRA simply does not support reducing the role of federal courts to ‘rubber stamps’ that automatically recognize a substantial burden whenever a religious adherent asserts there is one.”

The appellate majority also recognized that the federal government has a compelling interest in making certain that woman have contraceptive coverage without cost sharing or additional administrative hurdles. By requiring organizations that opt out of the mandate to identify themselves, the government ensures that these organizations’ health plan participants and beneficiaries can receive the coverage seamlessly through other channels. “Although the government has attempted to accommodate religious freedom as well as the needs of businesses,” Pryor wrote, “it has not done so in a way that undermines its goal of ensuring access to contraception.”

In a separate concurrence in which he emphasized that he agreed completely with Pryor, Anderson also rejected the argument that a religious employer be allowed to opt out of the contraceptive mandate without notifying anyone.

“The necessary consequence of such an automatic opt-out would be the imposition of plaintiffs’ religious beliefs on their female employees,” Anderson concluded.

“In other words, if [the U.S. Department of Health and Human Services] were not able to identify which employers have opted out, the employees of such employers would not receive contraceptive coverage, at least until they happened to sua sponte discover that their employer had opted out, and until such employees happened to sua sponte discover their statutory entitlement. Only then would such employees be in position to notify HHS, and begin their coverage.”

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