6th Circuit Finds no ‘Complicity in Sin’ in Contraceptive Mandate, Kevin Koeninger, Courthouse News Service

CINCINNATI (CN) – Catholic nonprofit organizations have no standing to challenge the constitutionality of Obamacare’s contraceptive mandate, because they are eligible for the Affordable Care Act’s religious exemption or accommodation, a 6th Circuit panel ruled.
The panel upheld rulings from the Western District Court of Michigan and the Middle District Court of Tennessee.
Eight Catholic nonprofits, including the Catholic Diocese of Nashville and Aquinas College in Nashville, claimed in separate 2013 lawsuits that the Affordable Care Act’s mandate violates the Religious Freedom Restoration Act (RFRA), and the Free Speech, Free Exercise and Establishment Clauses of the First Amendment.
The district courts denied the plaintiffs’ motions for preliminary injunction after “both … concluded that the contraceptive-coverage requirement does not impose a substantial burden on the exercise of religion because the plaintiffs were eligible for either the exemption or the accommodation from the requirement,” the 6th Circuit ruled.
The panel, consisting of Circuit Judges Karen Nelson Moore and John M. Rogers, along with District Court Judge John T. Nixon, rejected the plaintiffs’ argument that even though they may be eligible for the exemption, they are still required to pay for or provide contraceptive services and are therefore “complicit in sin.”
In her opinion, Judge Moore wrote that to obtain the accommodation, all a nonprofit religious organization need do is provide a copy of its certification to a third-party insurer which processes claims for contraceptive services.
“The appellants are not required to ‘provide’ contraceptive coverage. They are not required physically to distribute contraception to their employees upon request, and the eligible organization’s health plan does not host the coverage,” Moore wrote.
“The appellants are not required to ‘pay for’ contraceptive coverage. When an insurance issuer receives the self-certification form, it ‘must … provide separate payments for any contraceptive services.’ … The eligible organization’s money will not fund the contraceptive coverage.”
The plaintiffs claimed that submitting the certification form to a third party “triggers” the coverage for contraceptives and violates the RFRA, but the panel rejected this argument, ruling that federal law requires the coverage, regardless of whether the nonprofits submit the form.
Citing the 1986 Supreme Court case Bowen v. Roy, in which a Native American unsuccessfully challenged the government’s use of a Social Security number for his child – believing it would harm her spirit -Moore found that “just as the government’s use of the child’s Social Security number ‘does not itself in any degree impair [the family’s] ‘freedom to believe, express, and exercise’ [their] religion,’ the government’s instruction to insurance issuers and third-party administrators to provide contraceptive coverage does not force the appellants to provide, pay for, and/or facilitate access to the coverage.”
The plaintiffs First Amendment claims also were rejected.
The organizations equated being forced to provide contraceptive counseling services to being told what to say by the government, but the panel countered that argument.
Moore wrote that “the regulations certainly do not require the accommodated entity to ‘provide’ this counseling. The accommodated entity need not discuss or acknowledge the existence of the counseling coverage; the regulations require the insurance issuer or third-party administrator to inform plan participants and beneficiaries that separate payments are available for counseling and other contraceptive services.”
The panel also skewered the plaintiffs’ argument that the mandate imposes a “gag order” and prevents them from voicing their religious opposition to contraception.
Moore wrote: “A footnote in the commentary to the regulations states that ‘[n]othing in these final regulations prohibits an eligible organization from expressing its opposition to the use of contraceptives’ … [and] the regulations thus draw a line between impermissible efforts to interfere with or influence a third-party administrator’s provision of contraceptive coverage and permissible expressions of opposition to contraception.”
The judge continued: “It is not clear what the appellants want to do or say that they believe this regulation prohibits. Do the appellants feel chilled from having a calm discussion with their third-party administrators about Catholic doctrine, discouraging third-party administrators from entering into or maintaining contractual relationships with religiously affiliated organizations, encouraging the insurance issuer to violate federal law and refuse to provide contraceptive coverage, or something else altogether? We do not know. Not all speech is protected by the First Amendment.”
Finally, the panel dismissed the plaintiffs’ argument that by allowing some religious entities to be exempt – and granting the accommodation to others – the government violates the Establishment Clause and shows favoritism to certain religious groups.
Moore countered the argument by writing that “the fact that all of the appellants are affiliated with the Catholic Church and some are eligible for the exemption while others are eligible for the accommodation demonstrates that the framework does not discriminate based on denomination. Because the exemption and accommodation arrangement distinguishes between entities based on organizational form, not denomination, it does not express an unconstitutional state preference on the basis of religion.”