More than 40 employers across the country have brought federal lawsuits challenging the Patient Protection and Affordable Care Act’s (ACA) preventive care mandate. These employers profess religious objections to contraception and claim that the section of the preventive care mandate that requires coverage for contraception is unconstitutional or otherwise illegal as applied to them.
Section 2713 of the ACA requires certain group health plans and health-insurance issuers to provide coverage to women, without co-payments, coinsurance or deductibles, for “preventative care.” Pursuant to guidelines developed by the Health Resources and Services Administration, “preventive care” includes “[a]ll Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.”
There are exceptions to this contraceptive coverage requirement. For example, “religious employers” are exempt from compliance. In order to qualify for the religious-employer exemption, an employer must: (1) have the inculcation of religious values as its purpose; (2) primarily employ persons who share its religious tenets; (3) primarily serve persons who share its religious tenets; and (4) be a nonprofit organization as described in provisions of the Internal Revenue Code referring to churches, associations of churches, and exclusively religious activities of religious orders.
The government also created a temporary safe harbor from enforcement of the contraceptive coverage requirement for employers that are not otherwise exempt and meet all of the following criteria: (1) The organization is a nonprofit entity; (2) from Feb. 10, 2012, onward, the group health plan established or maintained by the organization did not provide contraceptive coverage at any point consistent with applicable state law, because of the religious beliefs of the organization; (3) The health plan provides notice stating that contraceptive coverage will not be provided under the plan for the first plan year, beginning on or after Aug. 1, 2012; and (4) The organization self-certifies that it qualifies for the safe harbor. While the safe harbor remains in place, the government plans “to develop and propose changes to the final regulations that would meet two goals — providing contraceptive coverage without cost-sharing to individuals who want it and accommodating non-exempted, nonprofit organizations’ religious objections to covering contraceptive services … ” (77 Fed. Reg. 8727).
In many of the pending lawsuits, the plaintiffs claim that the contraceptive-coverage requirement burdens their free exercise of religion by, for example, coercing “religious individuals … to directly subsidize contraception, abortifacients, sterilization and related services in contravention of their religious beliefs.” (State of Nebraska v. U.S. Dept. of Health and Human Servs.; July 17, 2012). The government has argued that compelling interests, including promoting public health and furthering gender equality, support the contraceptive coverage requirement.
The decisions of the various federal courts hearing these claims are inconsistent. One court aptly noted: “It seems to me very inefficient for this very issue to be litigated in 45 different districts at once” (The Catholic Diocese of Nashville v. Sebelius, Nov. 21, 2012). Some courts, including the U.S. Court of Appeals (USCA) for the District of Columbia Circuit, have dismissed or stayed the plaintiffs’ claims, finding that they are not ready for review in light of the amendment process that is currently underway. Other courts, including the U.S. District Court (USDC) for the Eastern District of New York, find that certain plaintiffs have established imminent injuries regardless of the government’s promised amendments. “There is no, ‘Trust us, changes are coming’” clause in the Constitution.” (The Roman Catholic Archdiocese of New York v. Sebelius; Dec. 5, 2012).