John Council, 5th Circuit Blocks Contraception Challenge, Texas Lawyer

The U.S. Court of Appeals for the Fifth Circuit has turned back a challenge brought by several Texas religious organizations that oppose offering insurance contraceptive coverage to their employees, concluding that the plaintiffs have no right to challenge the conduct of third parties.

The recent decision also found that U.S. Supreme Court’s controversial 2014 Hobby Lobby decision was of “no help” to the plaintiffs, which included East Texas Baptist University and the Catholic Diocese of Beaumont, among others. That 5-4 high court decision held that corporations opposed to offering contraceptive coverage to their employees are exempt under the Religious Freedom Restoration Act [RFRA].

The background to the Fifth Circuit’s June 22 decision in East Texas Baptist University v. Burwell is as follows.

In separate cases filed in various Texas federal trial courts, religious organizations challenged a requirement under the Affordable Care Act [ACA] that they either offer their employees health insurance that covers certain contraceptive services or submit a form or notification declaring their religious opposition to that coverage.

Religious entities are offered an accommodation under the ACA, which allows an exemption from the mandate if they send a notion of opposition to third party insurers, which ultimately pay for the coverage. But the trial courts held that the ACA’s requirements violated RFRA and enjoined the government from enforcing them.

Several government agencies charged with enforcing the ACA, including Sylvia Mathews Burwell, secretary of the U.S. Department of Health and Human Services, appealed the trial court decisions to the Fifth Circuit in a consolidated appeal.

In his decision, Judge Jerry Smith wrote that the Fifth Circuit was joining several other circuit courts in finding that the ACA’s contraception coverage mandate doesn’t present a substantial burden to the plaintiffs’ religious freedom.

“Although the plaintiffs have identified several acts that offend their religious beliefs, the acts they are required to perform do not include providing access to contraceptives. Instead, the acts that violate their faith are those of third parties,” Smith wrote, reversing the trial court decisions in the cases.

“Because RFRA confers no right to challenge the independent conduct of third parties, we join our sister circuits in concluding that the plaintiffs have not shown a substantial burden on their religious exercise,” Smith wrote.

While the plaintiffs complain that sending in a notion of opposition will authorize or trigger payments for contraceptives, that is “not so,” wrote Smith, who explained that “the ACA already requires contraceptive coverage.”

Smith also noted that the Hobby Lobby decision mentions that certain religious organizations have already been “effectively exempted” through the ACA’s accommodation.

“Thus, Hobby Lobby is of no help to the plaintiffs’ position, and the requirement to offer a group health plan does not burden their religious exercise,” Smith wrote.

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