Over the holiday season and continuing into 2014, one of the biggest legal developments has been a spate of activity in lawsuits brought by religiously-affiliated nonprofit organizations challenging the Affordable Care Act’s requirement that employers’ group health insurance plans cover preventive care for women, including access to the full range of FDA-approved contraceptives.  A number of religiously-affiliated non-profit employers – including large, religiously-affiliated universities such as the University of Notre Dame – have sought relief in the federal courts, claiming that the ACA infringes their religious liberty by forcing them to provide contraceptive coverage to their employees in a manner that compromises deeply held religious beliefs.    

Nearly fifty such cases are now percolating around the country, although virtually all the attention has been focused on Little Sisters of the Poor v. Sebelius.  On December 31, acting just before the ACA’s contraception coverage requirement was to go into effect, Justice Sonia Sotomayor (in her capacity as Circuit Justice for the Tenth Circuit) issued a temporary injunction to the Little Sisters of the Poor, a Denver nursing home run by an organization of Roman Catholic nuns, to allow the full Court to consider Little Sisters’ request for an injunction pending their appeal to the Tenth Circuit.  The Justices are still considering that request.  Meanwhile, in the Notre Dame case, in which no injunction was granted, the parties are filing briefs on an expedited basis, with oral argument slated for the middle of next month.   

Lost in the end-of-year flurry of activity have been some crucial facts about these cases and the issues they raise.  These cases, like Hobby Lobby and Conestoga Wood, now pending in the Supreme Court, involve challenges to the ACA’s contraceptive coverage requirement, but they raise an entirely different set of legal issues.        

Much of the media coverage has portrayed Little Sisters and similar cases as pitting religious institutions, simply wanting to practice their religion, against the federal government, seeking to override those beliefs.  But this vastly oversimplifies the actual issues raised by these cases, which implicate not only religious freedom but also the legal right of women under the ACA to have access to the full range of contraceptives.  Lost in much of the coverage of these cases is the fact that the federal government, seeking to respect fundamental precepts of religious liberty, has gone to great lengths to accommodate the beliefs of any religiously-affiliated employer subject to the ACA’s contraception mandate, while also ensuring that employees, no matter the faith of their boss, have access to contraceptives they want and need. 

What is really at stake here is whether the University of Notre Dame and other religiously-affiliated non-profit employers will be entitled to impose religious beliefs on their employees, and deny to their employees – who may not share those beliefs – important federal benefits that the Affordable Care Act guarantees to protect the health and welfare of hard working women throughout the country. 

Given the misconceptions surrounding Notre Dame, Little Sisters and similar cases, it is important to set the record straight and clarify the issues in this new wave of challenges now making their way through the lower federal courts. 

Misconception 1:  The Affordable Care Act Coerces Religious Bodies Into Paying For Contraceptive Coverage.

Fact:  Religious organizations, with the stroke of a pen, can exempt themselves from any requirement to pay for contraceptive coverage.

Far from manifesting hostility to religion, the Affordable Care Act’s contraceptive coverage rules offer generous accommodations to the tenets and practices of churches and religiously-affiliated non-profit organizations.  Under the ACA regulations, the contraceptive coverage requirement does not apply at all to churches and other houses of worship.   The Obama Administration found that churches and other houses of worship “are more likely than other employers to employ people of the same faith” and therefore exempted them entirely from the requirement, recognizing that a church’s employees would very likely share in any religious objection to the use of contraceptives.

The Obama Administration also crafted a second accommodation applicable to religiously-affiliated organizations, such as universities and health care and other service providers. Generally, the ACA requires employers that offer a group health plan to ensure that their plans provide coverage for certain preventive health care and services for their employees, without requiring plan participants to make copayments or pay deductibles or coinsurance.  However, when it comes to contraceptives, any religiously-affiliated organization – such as the University of Notre Dame or the Little Sisters – may, with the stroke of a pen, exempt itself from the legal obligation to pay for contraceptive coverage to which it has a religious objection.  The ACA regulations provide that, to obtain an exemption, the organization must (1) have “religious objections” to “providing coverage for some or all of any contraceptive services required to be covered;” (2) operate as a non-profit entity; (3) hold itself out as a “religious organization;” and (4) sign a self-certification.  The organization’s employees – such as a physics professor at the University of Notre Dame or a physician at Georgetown University Hospital, who may not necessarily share in the employer’s religious beliefs – will still be entitled to contraceptive coverage, but the insurance company, not the religious organization, will be responsible for paying the insurance costs and administering the insurance plan.     

The regulations further provide that, on signing the certification, a religious organization is not required to “contract, arrange, pay, or refer for contraceptive coverage.”   To that end, on receiving a signed certification, the health insurance carrier or third-party administrator must, on its own, “provide separate payments for any contraceptive services required to be covered . . . for plan participants and beneficiaries” or, in the case of a self-insured group health plan, opt to arrange for a third-party to provide such payments.  To further accommodate religiously-affiliated nonprofit organizations, the ACA regulations prohibit an insurance carrier from “impos[ing] any cost-sharing requirements” or “impos[ing] any premium, fee, or other charge” on the objecting organization.  Under this accommodation, employees who want and need access to the full range of contraceptives will still obtain the health care coverage they need, but no religiously-affiliated organization will have to pay for or administer the coverage against its will.    In short, by signing the certification, a religiously-affiliated organization can ensure, as the district court judge in the Notre Dame case put it, that “it will have nothing to do with providing contraception.”

Misconception 2:  The Affordable Care Act Requires Religious Bodies to Condone Sinful Behavior

Fact:  Religiously-Affiliated Organizations Can Disassociate Themselves From Contraceptive Coverage To Which They Are Opposed.

Notre Dame, Little Sisters and others have argued that the ACA’s religious accommodations are insufficient.  Signing the certification, they argue, would make them complicit in the provision of contraceptive coverage to their employees, effectively deputizing insurance companies to sin on their behalf.  In their view, by signing the certification, they are giving the green-light to insurance companies to pay for contraceptive coverage for their employees.

Apart from the fact that these employers already provide their employees with a paycheck that can be used to pay for contraceptive coverage should an employee choose to use any part of her income this way, this objection rests on a misunderstanding of how religious accommodations of this sort work.  As Marty Lederman has explained, “the whole point of the accommodation is that by opting out the objector would shift the responsibility to someone else (whether a state actor or, as here, another private party) to do what the religious objector declines to do.”  For example, when an individual with a religious objection to war obtains an exemption from a military draft, the duty to serve falls instead on another citizen, who would not otherwise have had to serve.   So too, here.  If a religiously-affiliated employer objects to paying for health care coverage that includes contraceptive coverage, federal law guarantees that its employees will have access to the full range of contraceptives by transferring the duty to pay for that coverage to insurance carriers.  What Notre Dame and Little Sisters are complaining about is not a bug in the ACA, but a feature of well-established religious accommodations. 

Misconception 3:  “Church Plans” Will Be Forced to Provide Contraceptive Coverage To Employees of Objecting Religiously-Affiliated Organizations

Fact: The Federal Government Has Conceded that “Church Plans” Are Not Subject to Legal Obligations under the Act’s Contraceptive Coverage Rules

One of the biggest misconceptions in the Little Sisters case is that Little Sisters is harmed at all by the ACA.  The facts are otherwise.  The federal government has conceded that, if Little Sisters certifies its objection to paying for contraceptive coverage, neither Little Sisters nor its insurance carrier will have any legal obligation to pay for or provide contraceptive coverage.  This is because Little Sisters provides health care insurance to its employees through Christian Brothers Employees Trust, a self-insured “church plan” that, the Solicitor General concedes, is exempt from federal regulation.  In fact, not only is Christian Brothers exempt from regulation, but it has vehemently refused to provide any contraceptive coverage.  Little Sisters, in short, is a case in search of a legal injury.