Substantial Burden: Religious Nonprofits and the Affordable Care Act

By Tanner Bowen 

Tanner Bowen is a rising sophomore at the University of Pennsylvania studying business. 

With the 2014 ruling in Burwell v. Hobby Lobby Stores, Inc. still fresh in the minds of employees across the United States, many women nervously approached what might become of their access to preventive care available under the Affordable Care Act if they worked for a religious employer.  Although the Supreme Court ruled that for-profit corporations could not be required to pay for insurance coverage of contraception, this ruling created larger implications involving the extent that religious entities can object to the mandate itself. [1]

Throughout the last term, at least two Courts of Appeals have tackled a new issue: whether a religious non-profit is substantially burdened under the Religious Freedom Restoration Act (RFRA) by having to notify the Department of Health and Human Services (HHS) or its insurance provider/third-party administrator (TPA) that they object to providing contraceptive care to their employees.  To give a little more context to the circumstances of this case, one must first go back to the 1990s.  For decades, the Supreme Court had used a balancing test for Free Exercise Claims by stating that the government must have a “compelling interest” to impose burdens on religion as well as “no alternative forms of regulation.”  [2] This changed in 1990 when the Supreme Court upheld a ban on peyote in the case Employment Division v. Smith, stating that generally applicable laws can burden religions but not violate the First Amendment.  This is when Congress stepped in and in 1993, passed the RFRA to restore pre-Smith analyses [3].

Two decades later, we now have the Affordable Care Act with the contraceptive care mandate. Congress included new provisions in the law to accommodate a wider range of religious employers in order to cover religious nonprofits.  Depending upon their health insurance plan, they would either contact their insurance provider or TPA, submitting a form (Form 700), essentially saying that they were going to opt out of providing contraceptive care to their employees.  After this, the insurance provider or TPA would provide contraceptive care to those employees while receiving some form of reimbursement from the government.

In the case Little Sisters of the Poor v. Burwell, the religious non-profit Little Sisters (as well as two other co-plaintiffs) sued HHS, stating that the process of opting out of providing preventive care substantially burdened their exercise of religion under the RFRA as well as violated other First Amendment rights.  In simple terms, these religious non-profits felt that submitting a form to their TPA or to HHS meant they were “signing off” on the approval to give their employees contraceptive care to which they fundamentally objected.  After hearing the case, the Tenth Circuit disagreed.

To start with the RFRA claim, the Tenth Circuit stated that filling out Form 700 did not substantially burden their exercise of religion.  The main reason stemming from this conclusion was that religious non-profits were already afforded the accommodation of not having to provide contraceptive care.  In fact, an entire section of the opinion is dedicated to how unusual the claim was considering that these religious nonprofits found an explicit accommodation to be burdensome.  This can be compared to the recent Supreme Court ruling in Holt v. Hobbs, where the justices found that it was acceptable for a prison to accommodate a Muslim inmate who was required to wear a beard for religious purposes. [4]

Aside from this rationale, the Tenth Circuit found the process of regularly submitting clerical paperwork to be nothing burdensome to these entities.  Most importantly, though, the act of submitting Form 700 automatically signaled that the religious nonprofit disagreed with the tenants of contraceptive care and was subsequently going to refuse to provide it.  That in itself, reasoned the Court, ensured that companies with sincerely held religious beliefs did not have to choose between violating them or not.  Since the Tenth Circuit found that no nonprofit was substantially burdened, the other tenants of strict scrutiny analysis pertaining to compelling interest and least-restrictive means didn’t apply.

The main issue in this case was simply that these religious nonprofits didn’t argue that the ACA mandate was unconstitutional, although their arguments may have implied that.  Instead, it was simply the methodology of completing paperwork to which they felt was burdensome.  And, as the Court swiftly dismissed the RFRA claims, it did so with the other First Amendment claims involving the Establishment Clause and Free Speech.   The Establishment Clause issues comes from exempting churches and integrated auxiliaries from the mandate, but requiring religious nonprofits to seek an accommodation.  In this claim, the Tenth Circuit highlighted “neutral, objective organizational criteria” such as differences in the Internal Revenue Code to dismiss this argument (compare to Smith-style analysis).  As for Free Speech, once again, the act of seeking the accommodation did not hinder these nonprofits from expressing their disagreement with the government’s stance on contraceptive care.  

In addition to Little Sisters, the Third Circuit reached the same ruling as the Tenth in Zubik v. Burwell.  This latter case also garnered national attention at the end of the October term in which the Supreme Court sent an order denying requests to stay the ruling. [5] Now with at least two Appeals Courts having ruled on this issue, the Supreme Court is considering whether to hear the case in what could further add momentum to the revolution that is corporate rights.  With consistent rulings in the last few religious exemption cases, it seems that the Supreme Court is now taking these claims more seriously.




[1] Appelbaum,Binyamin.”What the Hobby Lobby Ruling Means for America.” The New York Times. July 26, 2014. Accessed July 22, 2015. http://www.nytimes.com/2014/07/27/magazine/what-the-hobby-lobby-ruling-means-for-america.html?_r=0
[2]Micah Schwartzman, Richard Schragger, and Nelson Tebbe. “Hobby Lobby Rewrites Religious-Freedom Law in Ways That Ignore Everything That Came Before.” Slate.com. July 3, 2014. Accessed July 22, 2015. http://www.slate.com/articles/news_and_politics/jurisprudence/2014/07/after_hobby_lobby_there_is_only_rfra_and_that_s_all_you_need.html
[3] Ibid.
[4] Volokh, Eugene. “Holt v. Hobbs: Unanimous Victory for Muslim Prisoner in Religious Rights Case.” Washington Post. January 20, 2015. Accessed July 22, 2015
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/01/20/holt-v-hobbs-unanimous-victory-for-prisoner-in-religious-rights-case/
[5] Denniston, Lyle. “Court Clears Way for Birth Control Access.” SCOTUSblog RSS. June 29, 2015. Accessed July 22, 2015. http://www.scotusblog.com/2015/06/court-clears-way-for-birth-control-access/

Photo Credit: Flickr User Jennifer Morrow 

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