On November 6, 2015, the U.S. Supreme Court agreed to review whether the Religious Freedom Restoration Act ("RFRA") permits opting out from the Affordable Care Act’s contraception mandate, which currently requires group health plans provide a full range of contraceptive coverage to women at no cost. Under the RFRA, a law that substantially burdens religious freedom can be upheld only if it furthers a compelling government interest and is the least restrictive means of doing so.

The process for opting out involves informing the insurance plan or the U.S. Department of Health and Human Services ("HSS") of any objections. After the notification, either the insurance plan or a third-party administrator becomes responsible for providing the birth control coverage directly.  Seven circuits have generalized the opt-out process as quick and requiring little effort; therefore, the courts have rejected challenges to the process.[1] The Eighth Circuit, however, created a 7-1 circuit split in September 2015 siding with four Christian non-profits who argued that a process for opting out of the ACA’s contraception mandate violates their religious freedoms.[2] The U.S. Supreme Court agreed to resolve this circuit split, consolidating and reviewing this issue with regard to seven cases that withstood challenges to RFRA.

The non-profit groups are expected to argue that the ACA’s contraceptive mandate forces them to either violate their religious beliefs by providing contraception and/or medication meant to terminate pregnancy. They contend that the opt-out process is not sufficient because the groups are complicit in providing the coverage. On the other hand, those opposed to the “opt-out” claim contend that there is no violation of the RFRA and the opt-out process requires nothing more than completing a one-page form.

This is not the first time that the U.S. Supreme Court has heard a challenge to the birth control mandate of the ACA. As you may recall, in June 2014 we previously informed you about the Court’s decision in Burwell v. Hobby Lobby Stores Inc. which found that small, closely held for-profits could not be penalized under the ACA for refusing to offer birth control coverage.

Oral argument is expected during the Court’s March 2016 sitting with a decision likely in June 2016.

[1] Zubik, et. al. v. Burwell, et al.778 F.3d 422 (3d Cir. 2015), cert. granted, No. 14-1418, 2015 U.S. LEXIS 7030 (Nov. 6, 2015)Priests for Life, et al. v. HHS, et al.772 F.3d 229 (DC Cir. 2014), cert. granted, No. 14-1453, 2015 U.S. LEXIS 7038 (Nov. 6, 2015)Roman Catholic Archbishop v. Burwell, 772 F.3d 229 (DC Cir. 2014), cert. granted, No. 14-1505, 2015 U.S. LEXIS 7032 (Nov. 6, 2015); Texas Baptist University, et al. v. Burwell, et al.793 F.3d 449 (5th Cir. 2015), cert. granted, No. 15-35, 2015 U.S. LEXIS 7031 (Nov. 6, 2015); Little Sister of the Poor, et al. v. Burwell, et al.794 F.3d 1151 (10th Cir 2015), cert. granted, No 15-105, 2015 U.S. LEXIS 7033 (Nov. 6, 2015)Southern Nazarene University, et al. v. Burwell, et al.794 F.3d 1151 (10th Cir 2015), cert. granted, No. 15-119, 2015 U.S. LEXIS 7034 (Nov. 6, 2015); and Geneva College v. Burwell, et al., 778 F.3d 422 (3d Cir. 2015), cert. granted, No. 15-191, 2015 U.S. LEXIS 7037 (Nov. 6, 2015).
[2] Sharpe Holdings, Inc. v. United States HHS, No. 14-1507, 2015 U.S. App. LEXIS 16591 (8th Cir. Mo. Sept. 17, 2015)


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