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Legal History, Religion

Challenging the Accommodation to the Notice of the Exemption. Or, How to Eliminate Contraceptive Coverage Under the Affordable Care Act.

A generally applicable federal law exempts certain groups from complying with that law because it would place an undue burden on those groups’ religious freedom. But does it violate those groups’ religious freedom to notify other parties that they are exempt from the federal law? Not according to the federal courts that have been hearing challenges to the Affordable Care Act’s contraceptive mandate on the grounds that notice of exemption (the accommodation) from the ACA’s contraceptive mandate effectively forces exempt parties to provide contraceptives in violation of their beliefs. In fact, it was the very existence of that notice mechanism that was cited by the US Supreme Court in its 2014 Hobby Lobby decision. What was good for religious organizations was good for a multi-billion dollar corporation whose owners objected to paying for their employees’ reproductive healthcare. The accommodation provided a sufficient means for a business or religious organization to notify its insurance company that it was claiming an exemption from the contraceptive mandate on the grounds that providing contraception would substantially burden its sincerely held religious beliefs.

The issue seemed to be settled until later on the same day of the Hobby Lobby decision, when the Supreme Court granted a stay of the of the notice requirement. For the organizations claiming an exemption, notifying their insurers still hit a bit too close to home. According to a growing number of resistant religious organizations, when they notify their insurer, and the insurer is mandated to cover contraceptives directly, employees are still able to obtain contraception even though the complaining entity is not paying for it, which violates the plaintiff organization’s religious beliefs. The original accommodation has been challenged numerous times in federal court. The Department of Health and Human Services responded by implementing an accommodation to the accommodation: a rule change which allows objecting entities to avoid having any contact with their own insurers in order to notify them of the exemption from the contraceptive mandate. As of August 2014, qualifying religious organizations need only notify HHS, and the federal government will contact insurers directly. End of story. Except. Except, these religious organizations say notifying the government triggers their employees’ ability to obtain contraceptives under the ACA. Women will still get reproductive health care. Some woman somewhere will use contraception. Now, exempt organizations, including an order of nuns from Colorado, are demanding that courts strike down the contraceptive mandate itself. No accommodation is sufficient to shield them from being involved, however tangentially, in the process of providing contraceptives, so the entire mandate must fall, and women must be denied access to care. To be clear, contrary to what their lawyers and those from sympathetic organizations are claiming in amicus briefs as Little Sisters of the Poor seeks the Supreme Court’s review, none of these groups are, have been, or will be forced to pay for, distribute or supply contraceptives to anyone, anywhere, ever. They are merely filing a notice that says they are exempt from the ACA contraceptive mandate. But they contend that any notice of their exemption from the mandate eventually results in someone having access to contraceptives, which, they claim, unduly burdens their sincerely held religious beliefs.

The courts aren’t buying it. Seven U.S. Circuit Courts of Appeals have now upheld the contraceptive mandate and its accommodation provision (and the accommodation of the accommodation). The notice of the exemption does not constitute a burden. The Supreme Court should deny certiorari. The religious objectors will just have to get used to the idea that their sincerely held religious belief in their own authority to dictate women’s healthcare choices and realities by denying them access to contraception, is one belief that should not be accommodated. If they choose to view their inability to control other peoples’ lives as a burden, then it’s one they’ll just have to bear.


About legalfeet

I'm an essayist, commentator, lawyer and reporter with expertise in Constitutional Law, United States History, religion and public education. I cover current issues involving the First Amendment religion clauses, modern religious movements, scientific history and developments and the events in which these areas converge.


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© Robin Radner and Legalfeet, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Robin Radner and Legalfeet with appropriate and specific direction to the original content.
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