Christian nonprofits lose appeals court challenge to contraceptive mandate

The 10th U.S. Circuit Court of Appeals on Tuesday ruled against several Christian nonprofits who sought to prove the government’s accommodation under the contraceptive and abortifacient mandate violated their First Amendment rights, as well as the Religious Freedom Restoration Act.

The accommodation requires nonprofits to fill out a form declining coverage for contraceptive and abortifacient drugs and allowing their insurance companies to issue coverage to their employees directly.

The Affordable Care Act, adopted in March 2010, requires all group health plans to cover preventive services, including contraception, without employee cost sharing. “Contraception” includes drugs such as Plan B and Ella, which can act as abortifacients, and are morally objectionable to people who believe life begins at conception. Organizations with 50 or more employees who do not comply with the law are subject to huge fines. Churches are exempt from the mandate, while nonprofits are offered a religious exemption accommodation.

Tuesday's decision involved several Christian nonprofits: Little Sisters of the Poor, a Catholic order that serves the elderly in 30 residential centers across the nation and maintains homes in 31 countries; five Christian colleges, including Southern Nazarene University, Oklahoma Baptist University, Oklahoma Wesleyan University, Mid-America Christian University, and Truett-McConnell College; and Reaching Souls, which trains pastors and evangelists and provides orphan care in Africa, India, and Cuba.

Nonprofits must inform either their insurance provider or the government that they object to covering contraceptives by filling out Form 700. If the nonprofit notifies the government, it must provide contact information for the insurer. In either case, the insurance company is required to provide the coverage directly to employees.

The plaintiffs maintain the accommodation scheme violates their sincerely held religious beliefs because they cannot take actions that directly cause others to provide contraception or appear to participate in the government’s delivery scheme, the ruling noted.

But the court ruled federal law guarantees contraceptive coverage and employees don’t lose that right just because their employer disapproves of it.

“The opt-out does not ‘cause’ contraceptive coverage,” the ruling stated. “It relieves objectors of their coverage responsibility, at which point federal law shifts that responsibility to a different actor.”

The court ruled the accommodation does not violate the Religious Freedom Restoration Act because religious objectors are allowed to use the accommodation scheme and “plaintiffs are not substantially burdened merely because their decision to opt out cannot prevent the responsibility from being met.”

In the same way, the court found the accommodation does not violated the plaintiffs’ religious rights because they can decline the contraception coverage.

The plaintiffs also argued delivering the form declining coverage was “compelled speech,” obligating them to express a message they disagreed with because filling out the form “triggers” others to provide contraception and abortifacient coverage. The court disagreed.

“If anything, because the [nonprofits] specifically state on the self-certification form that they object on religious grounds to providing such coverage, it is a declaration that they will not be complicit in providing coverage,” the ruling said.

In January 2014, the U.S. Supreme Court issued an injunction against the mandate on behalf of Little Sisters of the Poor until its case was heard before the 10th Circuit. After yesterday’s ruling, the organization, along with all the plaintiffs in the case, must submit the official form declining contractive coverage—or face large fines.

Five months after issuing the injunction for Little Sisters, the Supreme Court issued its Hobby Lobby decision, ruling the contraceptive mandate was a substantial burden on for-profit businesses closely held by owners who object to providing contraceptive and abortifacient drugs. But the justices ruled the government could come up with another way to provide coverage to those companies' employees, specifically mentioning the nonprofit accommodation as an example.

Based on that, it's not clear whether the court would side with the nonprofits in their objections to the accommodation. But lawyers for the groups intend to find out.

“We will keep on fighting for the Little Sisters, even if that means having to go all the way to the Supreme Court,” said the Becket Fund’s Daniel Blomberg, the nonprofits’ attorney.

Emily Belz contributed to this report.