5th Circuit says HHS accommodation on mandate not a burden on religion

The religious rights of faith-based entities -- including the dioceses of Fort Worth and Beaumont, Texas, and the University of Dallas -- are not substantially burdened by the process to receive an accommodation from the federal government to avoid participating in a health care mandate for contraceptive coverage, the 5th U.S. Circuit Court of Appeals ruled Monday.

The ruling consolidated cases involving the two Catholic dioceses, the Catholic University of Dallas, Catholic Charities of Southeast Texas and Fort Worth, as well as East Texas Baptist University, Houston Baptist University and the Pennsylvania-based Westminster Theological Seminary, which joined the two Baptist institutions' suit as an intervenor.

The case is similar to that of the Little Sisters of the Poor, which is challenging the same regulation and the process of accommodation. That case is awaiting a ruling by the 10th U.S. Circuit Court of Appeals, where it was argued in December.

In the latest ruling, the New Orleans-based 5th Circuit reversed Texas federal courts that had said the Religious Freedom Restoration Act protects the institutions from complying with the process by which they could avoid providing contraceptive coverage in health insurance. The lower courts had granted injunctions blocking the requirement for the organizations to file certain paperwork to qualify for an accommodation designed by the Department of Health and Human Services for faith-based entities that don't qualify for an automatic exemption.

The cases sought review of the preliminary and permanent injunctions granted to the institutions. Dozens of religious institutions around the country have received injunctions in lower courts preventing them from having to participate in the contraceptive mandate, while others have been denied injunctions.

At the appeals court level, all that have ruled -- the 3rd, 7th and District of Columbia Circuits -- have found that religious rights are not substantially burdened by the accommodation process. In some of those cases, Supreme Court Justice Samuel Alito ordered that the rulings by the circuit courts be stayed until the underlying legal challenges to the law can be heard, effectively reinstating the injunctions for the time being.

The organizations maintain that the act of having to file a form with their insurer or third-party insurance administrator or, instead, of sending a notice to HHS about the accommodation, implicate the organizations in actions that violate their religious belief that artificial contraceptives are immoral.

Writing for a unanimous three-judge panel, Judge Jerry Smith said the steps required for the accommodation do no such thing.

"In short, the acts the plaintiffs are required to perform do not involve providing or facilitating access to contraceptives, and the plaintiffs have no right under RFRA to challenge the independent conduct of third parties" which are responsible for all the actions and financing involved in the provision of contraceptives, Smith said.

Under HHS guidelines, religious organizations that qualify for exemption because they are pervasively religious in character, are not required to provide contraceptive coverage in employee health insurance. In the case of nonexempt institutions such as religious colleges and social service agencies, the accommodation guidelines provide for other entities to provide coverage to employees of accommodated organizations. The accommodated employers have no role in paying for, providing or managing coverage of contraceptives in health insurance.

As Smith explained, the accommodation is available to entities that first "oppose, on religious grounds, providing coverage for some or all contraceptives; (2) it must be organized as a nonprofit; (3) it must hold itself out as religious; and (4) it must certify that it satisfies the foregoing criteria."

Smith noted that religious institutions including dioceses and churches are automatically exempt from the requirement of the Affordable Care Act for all health insurance plans to cover contraceptives. The Beaumont and Fort Worth dioceses sued because entities that fall under their insurance plans -- Catholic Charities agencies and Our Lady of Victory Catholic School -- do not qualify for an exemption, but they do qualify for the accommodation, he said.

He said "it is a misreading of the regulations" to conclude that the dioceses under which the Catholic Charities agencies and the school operate must either sponsor an insurance plan that includes contraceptives or remove the entities from their insurance plans.

Smith said that the accommodation does not burden the free exercise of religion, and therefore, "neither does a requirement that the dioceses do nothing and the affiliated entities apply for the accommodation."

The ruling cited last year's Supreme Court decision in Hobby Lobby, in which the court held that closely held, for-profit organizations may qualify for religious exemption from the mandate for coverage of artificial birth control, sterilization and abortion-causing drugs.

That ruling relied, said Smith, on reaffirming "that courts defer to the objector's description of his religious exercise upon finding that his beliefs are sincerely held and religious. And the court analyzed the substantiality of the penalties for noncompliance itself, rather than automatically accepting the corporations' position."

But, Smith said, the Hobby Lobby ruling said nothing about the legal question of whether the requirements of seeking an accommodation substantially burden religious exercise, which is the relevant issue in the cases he considered.

In these cases, Smith said, "although the plaintiffs have identified several acts that offend their religious beliefs, the acts they are required to perform do not include providing or facilitating access to contraceptives. Instead, the acts that violate their faith are those of third parties. Because RFRA confers no right to challenge the independent conduct of third parties, we join our sister circuits in concluding that the plaintiffs have not shown a substantial burden on their religious exercise."

The institutions had sued HHS, the Labor and Treasury departments and their secretaries.