United States Supreme Court Tees Up Sequel to “Hobby Lobby” Decision

As we previously reported, in June 2014, the U.S. Supreme Court confirmed in Burwell v. Hobby Lobby that closely-held corporations with religious owners could “opt out” from the Affordable Care Act’s (“ACA” or “Act”) requirement that they pay for insurance coverage of certain birth control when the particular contraception conflicts with the owners’ religious beliefs. Less than five (5) months later, the U.S. Supreme Court has agreed to review whether the process for opting out of the Act’s contraception mandate is permissible under the Religious Freedom Restoration Act (“RFRA”).

Under the “opt out” procedure currently in place, employers seeking an exemption from the contraception mandate must submit a form to their insurance plan or the U.S. Department of Health and Human Services concerning their objections. Typically, contraception coverage is then arranged for the employee at no cost to the employer. Some employers have objected to this process, arguing that this procedure violates the RFRA and the “opt-out” process renders the employer morally complicit in arranging contraception access for its employees.

District courts across the country have upheld the “opt-out” procedure, finding it permissible under the RFRA. Appeals have followed in several circuits, with the majority of the circuits rejecting arguments that the opt-out procedure substantially burdens religious freedom. The Eighth Circuit, however, took a different approach in September of this year, upholding orders from two lower courts finding that the opt-out procedure violated the RFRA and further finding that courts (and the government) must defer to employers’ “sincere religious belief that their participation in the accommodation process makes them morally and spiritually complicit in providing abortifacient coverage.”

This is the fourth time in five years that the Supreme Court will consider a legal challenge to the ACA.