Thursday’s decision by a federal appellate panel in Atlanta rejecting challenges to the Affordable Care Act’s contraceptive mandate was the eighth by a federal circuit court to affirm regulations that require employers with religious objections to contraceptives to notify the government of their intent to not offer contraceptive coverage in insurance plans.
Nine of the nation’s 13 federal appellate courts have tackled the issue—which has pitted churches, houses of worship, affiliated religious organizations and for-profit enterprises that assert their religious beliefs—against the U.S. Department of Health and Human Services.
Only the U.S. Court of Appeals for the Eighth Circuit has embraced arguments, some grounded in Catholic theology, from organizations contending that providing notification that their private insurance plans will not pay for contraceptives for women is as much a violation of their religious faiths as actually paying for the contraceptives.
On March 23, the U.S. Supreme Court will tackle the issue anew as it hears oral arguments in seven cases that have been consolidated. The high court will decide whether the opt-out provision—intended to accommodate religious nonprofit organizations that objected to the contraceptive mandate—violates the federal Religious Freedom Restoration Act by compelling them under penalty of law to notify the government that they are not providing contraceptive coverage for religious reasons.
After issuing 148 pages containing a majority ruling, a dissent and a concurrence, the Eleventh Circuit panel stayed the government from enforcing the regulations until the Supreme Court rules in Zubik v. Burwell and six companion cases. The plaintiffs in the consolidated cases before the Eleventh Circuit include the Eternal Word Television Network, which was founded by a Catholic nun in Alabama; the Roman Catholic Archdioceses of Atlanta and its affiliated Catholic Charities; and the Roman Catholic Diocese of Savannah.
Writing for the majority, Judge Jill Pryor said the regulations do not substantially burden the plaintiffs’ exercise of their religious freedom, that the government has “compelling interests” to justify the opt-out provision, and that it is “the least restrictive means of furthering those interests.” Pryor was joined in her ruling by Senior Judge R. Lanier Anderson.
Judge Gerald Tjoflat authored a 55-page dissent.
Wrote Pryor: “We agree with our seven sister circuits that the question of substantial burden also presents ‘a question of law for courts to decide.’
“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 added. “Such a framework improperly substitutes religious belief for legal analysis regarding the operation of federal law.”
“Indeed,” she concluded, “the plaintiffs have identified nothing in [the 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.”
But Daniel Blomberg, an attorney with The Becket Fund for Religious Liberty who represents the Eternal Word Television Network, said that the eight circuits that have rejected challenges to the notification requirements are simply wrong.
“We are waiting on the Supreme Court to resolve confusion on this issue. … When they look at all the arguments, we think they are going to rule the right way. They are not going to force religious minorities to violate their faith.”
The Becket Fund is a nonprofit law firm that defends religious liberties on behalf of people of faith against the government, but also has defended governments sued over First Amendment issues regarding religion.
Blomberg challenged the appellate panel’s finding that the opt-out provision doesn’t illegally coerce organizations or individuals who object for religious reasons into violating their religious precepts. “That’s not how religious liberty law works if the government and the government bureaucrats get to tell you what your religious beliefs are,” he said. “That’s what the court is trying to do here, and that’s what the government has done.”
The lawyer also contended that the government notification requirement creates a “new authorization” for the plaintiffs’ third-party insurers to provide religiously objectionable contraceptives. He said that the plaintiffs submitted the opinion of a Catholic theologian that even signing the opt-out form “is against our religious faith” because it sets up an alternative mechanism for making contraceptives available.
Blomberg embraced Tjoflat’s dissent, which said the majority opinion “makes bad law.”
Judge Gerald B. Tjoflat, U.S. Eleventh Circuit Court of Appeals.John Disney/Daily Report
“The government,” Tjoflat wrote, “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 government had failed to do.
Gretchen Borchelt, vice president for reproductive rights and health at the National Women’s Law Center—which has filed a friend of the court brief in support of the contraceptive mandate at the U.S. Supreme Court—said the Eleventh Circuit ruling “is just the latest in an overwhelming majority of circuit court decision to decide for the birth control benefit against these objecting employers.”
“It’s clear these claims are without merit,” she continued. “We have full confidence that the Supreme Court will find the same way.” The Eleventh Circuit’s opinion, she said “just gives us more support.”
Borchelt also suggested that it is “unprecedented” that organizations such as the plaintiffs “can use religious beliefs to block a third party from doing something. That kind of claim we have rarely seen in the courts.”
Opt-out provisions, she said, are not rare. “But never before have we seen these claims that once they opt out, no one else can step in to provide those services. It’s worrisome to a lot of people. … There is a real concern about how far this argument can go.”
Brigitte Amiri, a senior staff attorney at the ACLU, which filed an amicus brief in the appellate cases in Atlanta in support of the government, agreed that the opinion “tracks and is completely in line with other courts of appeals decisions that there is no substantial burden on plaintiffs’ religious beliefs to ask for and opt out of the contraceptive mandate requirement.”
She called the Eleventh Circuit ruling more thorough than some of its sister circuits in that it also determined that the government had a compelling interest in safeguarding women’s health by making contraceptives easily available, and that the opt-out provision allowed for the fewest restrictions on religious freedom.
The majority opinion held that the government had a compelling interest in promoting “the positive public health outcomes” associated both with reducing unintended pregnancies and giving women more control over when they become pregnant. Citing a study commissioned by the government while the regulations were being developed, the opinion said the U.S. has a much higher rate of unintended pregnancies than other developed countries, that unintended pregnancies correlate with health problems both for women who experience them and for children born as a result of them, and that unintended pregnancies often end in abortion.
Amiri and Borchelt also singled out Anderson’s separate concurrence. While he agreed wholly with Pryor’s opinion, Anderson took aim at suggestions that a religious employer should be allowed to opt out without notifying anyone, saying that it would impose plaintiffs’ religious beliefs on their female employees.
Amiri said that Anderson’s concurrence “brings home the real world, on-the-ground problems of how the alternatives [suggested] by the plaintiff would work in practice. “It’s a nice addition to underscore the practical reality of how their proposals would not work.”