The Obama administration won a significant court victory Friday over whether employees of some religious nonprofits will have insurance coverage for contraception under the Affordable Care Act – or, as the plaintiffs put it, whether signing the opt-out form to such coverage is a “permission slip” for “abortion.” To add insult to injury for conservatives, the 86-page decision was written by an Obama-appointed judge, Cornelia Pillard of the D.C. circuit, whom they bitterly opposed for being a “radical feminist.”
“The accommodation meets the twin aims of respecting religious freedom and ensuring that women continue to receive contraceptive coverage without administrative, financial, or logistical burdens,” wrote Pillard.The administration has offered an opt-out form for religiously-affiliated non-profits, like colleges and hospitals, who object to covering birth control. The form means that the coverage is provided by the insurer directly, without the objecting employer paying for it. But some nonprofits – like the ones in this case, including Priests for Life and Catholic University – say the form itself violates their religious liberty.
The three-judge panel on the D.C. Circuit was unanimous Friday in ruling against that argument.
“The regulatory requirement that they use a sheet of paper to signal their wish to opt out is not a burden that any precedent allows us to characterize as substantial,” wrote Pillard, who has been compared to Justice Ruth Bader Ginsburg for her track record on women’s rights litigation. She called the accommodation “a simple, one-step form for opting out and washing their hands of any involvement in providing insurance coverage for contraceptive services.”
The case is similar to ones brought by the University of Notre Dame (which has asked the Supreme Court to reverse the appeals court decision against it) and Wheaton College (which got an injunction from the Supreme Court pending its appeal). So far, all appeals courts have ruled against these non-profit employers, which differ from for-profit companies like Hobby Lobby because they were offered, from the start, an “accommodation.” They are suing over that very accommodation.
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Pillard wrote for the court that not only does the accommodation not count as a substantial burden on religious liberty, but the government’s strong interest in gender equality and public health overrides that burden.
“A confluence of compelling interests supports maintaining seamless application of contraceptive coverage to insured individuals even as Plaintiffs are excused from providing it,” Pillard wrote. “That coverage offers adults and children the benefits of planning for healthy births and avoiding unwanted pregnancy, and it promotes preventive care that is as responsive to women’s health needs as it is to men’s. The accommodation requires as little as it can from the objectors while still serving the government’s compelling interests.”
The cases make it clear that the end goal for these lawsuits is no contraceptive coverage for their employees. That was less clear in Hobby Lobby, where the decision by Justice Samuel Alito implied that an exemption wouldn’t harm anyone. Pillard used that to rule against the plaintiffs: “In holding that Hobby Lobby must be accommodated, the Supreme Court repeatedly underscored that the effect on women’s contraceptive coverage of extending the accommodation to the complaining businesses ‘would be precisely zero,’” she pointed out. “The relief Plaintiffs seek here, in contrast, would hinder women’s access to contraception.”
She pointed to evidence showing that even seemingly small impediments to contraceptive access prevent them from using it effectively, and noted, “For most women, whether and under what circumstances to bear a child is the most important economic decision of their lives.”
The key question underlying these cases is whether a burden on religious freedom is automatically whatever the person bringing the lawsuit says it is. Pillard wrote that not just anything can be a “substantial burden,” which is the test under the 1993 Religious Freedom Restoration Act, or RFRA. “Religious objectors do not suffer substantial burdens under RFRA where the only harm to them is that they sincerely feel aggrieved by their inability to prevent what other people would do to fulfill regulatory objectives after they opt out. They have no RFRA right to be free from the unease, or even anguish, of knowing that third parties are legally privileged or obligated to act in ways their religion abhors.” In other words, the harm to their religion can’t be that someone else is engaging in behavior they don’t approve of.
“Religious nonprofits like the Plaintiff organizations employ millions of Americans—including individuals who do not share their beliefs,” Pillard wrote, adding, “In our cosmopolitan nation with its people of diverse convictions, freedom of religious exercise is protected yet not absolute.”
It’s not clear what the next step is for the nonprofit contraception cases. Notre Dame, which lost at the appeals court, went to the Supreme Court but asked it only to send the case back to the lower courts rather than issue a decision on the merits itself. Since there is not yet a split in the appeals courts – a key condition for the Supreme Court to take the case – the Supreme Court can wait to take the case. But with dozens of plaintiffs across the country like the ones in the D.C. Circuit, a circuit split seems inevitable.
Pillard was confirmed when Democratic leaders in the Senate, sick of Republicans blocking nominations like hers, invoked the so-called “nuclear option” – a controversial parliamentary procedure to overcome a filibuster with a simple majority. With Republicans set to take back majority control of the Senate after this month’s midterm elections, it seems highly unlikely that future Obama judicial nominees like Pillard will get confirmed.