Breaking with six other U.S. Circuit Courts of Appeals, on Thursday, the Eighth Circuit decided that filing a form is a bridge too far for religious non-profits. The other appeals courts had all rejected the argument that the form makes the organizations complicit in providing contraceptive coverage, thereby imposing a substantial burden on their religious beliefs. Already allowed to opt out of the contraceptive mandate under the Affordable Care Act by simply completing a form stating that they are choosing to avail themselves of the exemption, and including their insurance information, religious organizations and non-profits all over the country have sought to be excused from performing even this most minor of administrative tasks. Under the ACA, when a religious organization asks to be included under the accommodation, it must either notify its insurance provider directly through the exemption form, or the federal government using an alternative notice containing a statement that it is claiming the exemption and specifying its insurance information. Under the latter arrangement, the Department of Health and Human Services contacts the insurer. The insurer then assumes the obligation to pay for contraceptive coverage. To the objecting organizations this produces the unfortunate result that women will continue to be covered under the contraceptive mandate, which is their real objection. These groups uniformly and erroneously claim that contraceptives cause abortions, so fighting the mandate, and refusing to comply with the accommodation filing requirements, are means of blocking access to reproductive health measures, and all part of an ongoing expansion of the definition of religious liberty at the expense of women’s healthcare needs.
In the Eighth Circuit case, the appellees claimed that the form was not the least restrictive means of providing contraceptives. They proposed filing an exemption notice without insurance information or requiring the federal government to pay for contraceptives directly, echoing a suggestion by the majority in the Hobby Lobby decision. In a time of zealous lip-service to a leaner, more efficient government, and when the continued operation of the entire federal government is teetering precariously in the face of threats to shut the whole thing down if one of the largest providers of women’s healthcare isn’t defunded into oblivion, any proposals to expand the government’s role, or allocate tax dollars for contraceptive coverage, have little to no chance of succeeding. The organizations fighting the mandate know this. Justice Alito knew it. And they know that if religious non-profits are exempt both from providing coverage and giving effective notice, other employers will seek the same vast accommodation, and also argue that their sincerely held religious beliefs are substantially burdened by the mere filing of a form. And lest someone counter that no such avenues would be open to non-religious employers, I have two words for you. Hobby Lobby. Last year the Supreme Court thought that it and other similarly inclined corporate behemoths should be able to use the same exemption as religious organizations. If the exemption is found to be too much of a burden for religious groups, count on corporations with strongly held religious beliefs to ask for their right to opt out of the opt-out. If this argument prevails, as it did Thursday in the Eighth Circuit, at the very least, it could lead to extensive coverage delays. At worst, it could mean a denial of access to a large number of women. For the religious entities seeking to impose an anti-choice framework on the Affordable Care Act, it will mean “Mission Accomplished.”