Last week, a unanimous three-judge panel of the D.C. Circuit upheld the religious accommodation to the Affordable Care Act’s (“ACA”) contraceptive coverage mandate (Priests for Life v. HHS, D.C. Cir. No. 13-5368, Nov. 14, 2014).  The court held that the accommodation set out by the Department of Labor (“DOL”) and Department of Health and Human Services (“HHS”) is a simple solution that does not impose a burden for purposes of the Religious Freedom Restoration Act of 1993 (“RFRA”).

Specifically, the court held that the religious accommodation does not impose a substantial burden on the religious rights of Priests for Life because all it requires them to do “to opt out is express what they believe and seek what they want via a letter or two-page form.”  They continued to say that even if the self-certification imposed a burden, it is the least restrictive means to achieve the government’s compelling interest in ensuring access to contraceptive coverage.

This is the third circuit court to reject such a challenge to the religious accommodations.  The D.C. Circuit also noted that, “Many religiously affiliated educational institutions, hospitals, and social-service organizations have taken advantage of the accommodation, and courts of appeals have uniformly sustained it against challenges under RFRA and the Constitution. See Mich. Catholic Conf. & Catholic Family Servs. v. Burwell, 755 F.3d 372 (6th Cir. 2014); Univ. of Notre Dame v. Sebelius, 743 F.3d 547 (7th Cir. 2014) petition for cert. filed (Oct. 3, 2014) (No. 13-3853).”  A petition has been filed to the Supreme Court for consideration of the Notre Dame case and it is expected that this D.C. Circuit decision will also be appealed to the Supreme Court.

D.C. Circuit Decision and Hobby Lobby

The D.C. Circuit puts forward a discussion distinguishing its holding in this case from the Supreme Court’s holding in Hobby Lobby.  The court explains that the critical difference is that Hobby Lobby is brought by for-profit, closely held corporations, seeking the ability to opt-out of the contraceptive coverage requirements – an accommodation that is already available to the non-profit religious entities in the case before the D.C. Circuit.  The D.C. Circuit explained the Hobby Lobby decision as finding that in the absence of an accommodation, the contraception coverage requirement imposes a substantial burden on the religious exercise of closely-held for-profit corporations.

The D.C. Circuit reasons that “the opt out already available to Plaintiffs is precisely the alternative the Supreme Court considered in Hobby Lobby and assumed would not impinge on the for-profit corporations’ religious beliefs even as it fully served the government’s interest.”  They also cite the fact that “the Supreme Court repeatedly underscored that the effect on women’s contraceptive coverage of extending the accommodation to the complaining businesses ‘would be precisely zero.’”

In contrast, what was sought by the Plaintiffs in front of the D.C. Circuit would “hinder women’s access to contraception. It would either deny the contraceptive coverage altogether or, at a minimum, make the coverage no longer seamless from the beneficiaries’ perspective, instead requiring them to take additional steps to obtain contraceptive coverage elsewhere.”

Health Plans, TPAs, and PBMs are still on the hook!

The obligations of health plans, TPAs, and PBMs to provide or arrange for separate payments for contraceptive services remain the same.  The D.C. Circuit acknowledges that the ACA imposes an independent obligation on insurers and TPAs to provide contraceptive coverage: “ So, too, it is the ACA that requires that plan issuers and TPAs fill the resulting gaps, not the opt-out notice…As long as Plaintiffs complete either notice, the regulations excuse them from any further involvement in providing contraceptive coverage…the beneficiaries receive contraceptive coverage not because Plaintiffs have completed the self-certification or alternative notice, but because the ACA imposes an independent obligation on insurers and TPAs to provide this coverage.”