More than 40 employers across the country have brought federal lawsuits challenging the Patient Protection and Affordable Care Act’s (ACA) preventive care mandate. These employers profess religious objections to contraception and claim that the section of the preventive care mandate that requires coverage for contraception is unconstitutional or otherwise illegal as applied to them.
Section 2713 of the ACA requires certain group health plans and health-insurance issuers to provide coverage to women, without co-payments, coinsurance or deductibles, for “preventative care.” Pursuant to guidelines developed by the Health Resources and Services Administration, “preventive care” includes “[a]ll Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.”
There are exceptions to this contraceptive coverage requirement. For example, “religious employers” are exempt from compliance. In order to qualify for the religious-employer exemption, an employer must: (1) have the inculcation of religious values as its purpose; (2) primarily employ persons who share its religious tenets; (3) primarily serve persons who share its religious tenets; and (4) be a nonprofit organization as described in provisions of the Internal Revenue Code referring to churches, associations of churches, and exclusively religious activities of religious orders.
The government also created a temporary safe harbor from enforcement of the contraceptive coverage requirement for employers that are not otherwise exempt and meet all of the following criteria: (1) The organization is a nonprofit entity; (2) from Feb. 10, 2012, onward, the group health plan established or maintained by the organization did not provide contraceptive coverage at any point consistent with applicable state law, because of the religious beliefs of the organization; (3) The health plan provides notice stating that contraceptive coverage will not be provided under the plan for the first plan year, beginning on or after Aug. 1, 2012; and (4) The organization self-certifies that it qualifies for the safe harbor. While the safe harbor remains in place, the government plans “to develop and propose changes to the final regulations that would meet two goals — providing contraceptive coverage without cost-sharing to individuals who want it and accommodating non-exempted, nonprofit organizations’ religious objections to covering contraceptive services ... ” (77 Fed. Reg. 8727).
In many of the pending lawsuits, the plaintiffs claim that the contraceptive-coverage requirement burdens their free exercise of religion by, for example, coercing “religious individuals … to directly subsidize contraception, abortifacients, sterilization and related services in contravention of their religious beliefs.” (State of Nebraska v. U.S. Dept. of Health and Human Servs.; July 17, 2012). The government has argued that compelling interests, including promoting public health and furthering gender equality, support the contraceptive coverage requirement.
The decisions of the various federal courts hearing these claims are inconsistent. One court aptly noted: “It seems to me very inefficient for this very issue to be litigated in 45 different districts at once” (The Catholic Diocese of Nashville v. Sebelius, Nov. 21, 2012). Some courts, including the U.S. Court of Appeals (USCA) for the District of Columbia Circuit, have dismissed or stayed the plaintiffs’ claims, finding that they are not ready for review in light of the amendment process that is currently underway. Other courts, including the U.S. District Court (USDC) for the Eastern District of New York, find that certain plaintiffs have established imminent injuries regardless of the government’s promised amendments. “There is no, ‘Trust us, changes are coming’” clause in the Constitution.” (The Roman Catholic Archdiocese of New York v. Sebelius; Dec. 5, 2012).
While several courts have found a strong likelihood that the contraceptive coverage requirement burdens certain plaintiffs’ religious freedom, the USDC for the Eastern District of Missouri dismissed the claims of a secular, for-profit company and its owner.
“[P]laintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives. The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health-care providers and patients covered by [the company’s] plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. This Court rejects the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise.” (O’Brien v. U.S. Dept. of Health & Human Servs.; Sept. 28, 2012).
O’Brien appealed the decision and a few months later, the USCA for the Eighth Circuit stayed the government’s enforcement of the contraceptive coverage requirement against O’Brien pending the outcome of his appeal. (O’Brien; Nov. 28, 2012).
As of Jan. 7, 2013, the government advised that its agencies had received nearly 200,000 public comments on the proposed amendments to the contraceptive coverage requirement. A Notice of Proposed Rulemaking should be published in the first quarter of 2013. The government intends to finalize amendments to the preventive-services coverage regulations before Aug. 1, 2013. Kentucky employers with religious objections to the contraceptive coverage provision should pay close attention to the amended regulation and the new wave of litigation that is sure to follow it.
Leila G. O’Carra is an attorney in the Lexington office of Wyatt, Tarrant & Combs, LLP.