Third-party contraceptive-coverage rules don't violate religious employers' rights, court rules

In another blow to objections to the Affordable Care Act's birth control-coverage mandate, a panel of judges has ruled that religious employers' rights are not violated by rules that require them to provide their employees with contraceptive coverage through third parties.

The U.S. Court of Appeals for the Second Circuit reversed a previous decision in the case of Catholic Health Care System v. Burwell by ruling that the third-party insurance coverage rules--created to accommodate employers who object to directly covering their employees' birth control--do not "substantially burden Plaintiffs' religious exercise in violation of the Religious Freedom Restoration Act."

One of the judges who issued the ruling, Rosemary Pooler, writes in the court opinion that the burden on religious employers is not substantial because it simply requires them to fill out a form in order to authorize a third party to provide contraceptive coverage.

"I think the message is getting clearer and clearer and clearer from federal appeals courts that filling out a form seeking exemption from the regulations is very different from providing contraception itself," Greg Lipper, senior litigation counsel for Americans United for Separation of Church and State, told the New York Law Journal.

A federal appeals court ruled in July that ACA regulations requiring religious employers to apply for an exemption to the contraceptive-coverage mandate does not constitute a substantial burden to these organizations' religious freedom. The plaintiffs in that case, a Catholic order of nuns known as the Little Sisters of the Poor, plan to take their case to the Supreme Court.

The plaintiffs in Catholic Health Care System v. Burwell may well do the same, Mailee Smith, staff counsel for Americans United for Life, told the New York Law Journal. Her organization remains confident that if the Supreme Court agrees to hear religious employers' objections, "the reality of this non-accommodation will come to light," she said.

Still, because no federal appellate court has ruled against the most recent accommodation, "unless one of the circuits does, or unless the Supreme Court decides to hear the case without a split among the circuits, the accommodation will remain in place," Washington and Lee University law professor Timothy Jost writes in a Health Affairs blog post.

To learn more:
- here's the ruling
- read the New York Law Journal article
- check out the Health Affairs blog post

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