By Bob Allen
A federal appeals court ruled July 14 that requiring a religious nonprofit to opt out of mandated contraceptive coverage under Obamacare is not a substantial burden on religious exercise.
The 10th U.S. Circuit Court of Appeals said religious organizations including GuideStone Financial Services of the Southern Baptist Convention must either cover FDA-approved contraceptives in employee insurance plans or follow the government’s rules for opting out of the contraceptive mandate.
Plaintiffs in three cases combined before the appellate court objected not only to paying for methods of birth control they believe can cause an abortion but also to the government’s plan for accommodating religious objection to the requirement.
Southern Baptist plaintiffs including Oklahoma Baptist University, Truett-McConnell College and Reaching Souls International argued that the act of filling out the accommodation form that kicks in third-party coverage would make them a party to providing the very drugs and devices they oppose on religious grounds.
Lower courts have disagreed about that assertion, but the 10th Circuit determined it is not the act of “self-certification” but rather federal law that “kicks in” contraceptive coverage. That means simply notifying the government of intent to not participate does not constitute a “substantial” burden required to prevail under the Religious Freedom Restoration Act passed by Congress in 1993.
The Becket Fund for Religious Liberty, a nonprofit, public-interest law firm handling several cases challenging the contraceptive mandate, took exception to the court’s assessment that the opt-out procedure is “as easy as obtaining a parade permit, filing a simple tax form, or registering to vote.”
“We will keep on fighting for Reaching Souls, Truett-McConnell, and GuideStone, even if that means having to go all the way to the Supreme Court,” Adèle Keim, counsel at the Becket Fund for Religious Liberty, said in a news release.
As a self-insured church plan, GuideStone must follow a slightly different opt out procedure than other religious nonprofits. The government can require plaintiffs with a self-insured church plan to use the form or notify the HHS of plans to opt out but lacks authority to penalize a third party administrator if it declines to provide or arrange for contraceptive coverage.
The appellate court said the lack of enforcement authority makes the burden on church plans “even less burdensome” than self-insured plans that are subject to the Employee Retirement Income Security Act of 1974.
The Denver-based court is the fifth appellate court to turn back challenges by faith-based nonprofits to the HHS accommodation.