Employers who opt out of providing health insurance coverage for contraceptives don’t have their religious exercise burdened by those opt out procedures, the Fifth Circuit ruled on Monday. The Circuit joined the Seventh, Sixth, Third, and D.C. Circuits in rejecting a challenge to Obamacare’s contraception mandate by religious nonprofit organizations.

Under Obamacare, religious nonprofits can opt out of directly providing contraception to their employees. To do so, they need simply fill out a short form and send to the Department of Health and Human Services for certification. Third parties then provide contraception access. 

Who Determines the Burden?

Religious employers in each case asserted that any participation that allowed their employees to have access to contraception burdened their religious beliefs. The central question in these cases: who determines the burden? If a religious litigant claims that something offends their religious practice, is that enough? No, the Fifth held. 

Bowen Decides It

Like its sister circuits, the Fifth analogized the RFRA objections to free exercise cases. Like all circuits except the Sixth, the Fifth relied on Bowen v. Roy to find that the judiciary is the arbiter of whether there is a genuine burden on religious freedom. In Bowen, a father objected to the issuance of a Social Security numbers for his daughter, saying it would “rob her spirit.” 

Hobby-Lobby Is No Help

There have been over 70 lawsuits filed objecting to the ACA’s contraception requirement. Almost all of these have relied on Hobby Lobby to support their claims that the contraception requirement – really, the process of opting out from it – violates RFRA and their free exercise. 

Will the Supreme Court chime in? It doesn’t seem to be in any rush to decide the issue, having yet to take up any appeals from other circuits’ rulings.

Related Resources:

  • Court Rejects Texas Religious Challenge to Obamacare (Austin American-Statesman)
  • Deja Vu: 7th Again Denies Injunction in Notre Dame ACA Case (FindLaw’s U.S. Seventh Circuit Blog)
  • 6th Cir. Holds That Employer Must Provide Contraception (FindLaw’s U.S. Sixth Circuit Blog)
  • 3rd Cir. Follows Others in Upholding ACA Contraceptive Exemption (FindLaw’s U.S. Third Circuit Blog)

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