Religious Institutions and the Battle Over the Affordable Care Act’s Contraception Mandate
Tuesday, February 14, 2017 at 3:58PM
David H.K. Nguyen

The Patient Protection and Affordable Care Act, better known as the Affordable Care Act (ACA), was signed into law by President Barack Obama on March 23, 2010, and later upheld by the United States Supreme Court on June 28, 2012. The law was written to accomplish a number of things, among them to increase health insurance access and quality. One major point of contention with the law was a contraception mandate – a requirement for all employers and educational institutions to provide female contraception coverage. The law noted one exception to those under its influence – churches and houses of worship. The law provided four requirements to be considered a religious employer and to receive the exemption:

(1) The inculcation of religious values is the purpose of the organization.

(2) The organization primarily employs persons who share the religious tenets of the organization.

(3) The organization serves primarily persons who share the religious tenets of the organization.

(4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.

Much to the disapproval of many religious organizations, the requirements to be exempt from the mandate did not cover religious schools, religious hospitals, religious charities, and other businesses and organizations owned and controlled by religious groups. Even though many private religious schools’ missions cover more than simply the inculcation (teaching) of religious values, their exemption status was not granted. Organizations that failed to provide health coverage would be subjected to a fee. By mandating contraception coverage, many of these organizations felt their religious tenets were being compromised.

The Obama Administration offered an opt-out compromise allowing religious nonprofits to explicitly state their opposition to the contraception mandate and to have the organizations’ insurance companies cover the cost of the contraceptives at no financial burden to the nonprofit. Several religious nonprofits still felt this compromise was not satisfactory as they felt responsible for the providence of contraceptives. This resulted in multiple lawsuits.

Colorado Christian University (CCU), a private religious institution in Denver, Colorado, filed a lawsuit in 2011 against the United States Department of Health and Human Services (HHS) related to the contraception mandate. The case was rejected but then renewed again in 2013. In 2014 CCU was granted an injunction from the contraception mandate by the Colorado district court. The result was that CCU would not have to pay a fee for failing to provide contraception health care until later court rulings affected the lawsuit.

The 10th U.S. Circuit Court of Appeals heard a lawsuit against the contraception mandate by a private corporation, Hobby Lobby. Burwell v. Hobby Lobby was heard by the United States Supreme Court and a decision was rendered in 2014. The court ruled 5-4 in favor of Hobby Lobby allowing closely held for-profit religious corporations to be exempt from the contraception mandate if there was a less restrictive means of accomplishing the law’s intent. The decision cited the Religious Freedom Restoration Act of 1993 as evidence.

In Oklahoma an appeal of a similar lawsuit to CCU’s was rejected in 2015. The 10th U.S. Circuit Court of Appeals ruled against four Oklahoma Christian universities who were seeking an exemption from the contraception mandate. The court decided that the law and its religious exemptions do not violate the schools’ religious freedom. This ruling upheld the accommodation created by the Obama Administration.

With the contraception mandate still in effect and the compromise offering the best alternative for many religious institutions, dissenting schools were forced to utilize a few different options: compliance with the law, lawsuits challenging the law and seeking injunctions, or not paying the fee. On July 31, 2015, Wheaton College, a private Christian institution, ended their student health insurance, utilized by a quarter (approximately 3,000 individuals) of the student population due to conflicts with their centrally held religious beliefs.

Currently both sides of the issue appear to be at an impasse. In May of 2016, the Supreme Court sent the case back to the appellate courts, asking the federal appeals courts to reach a compromise on the issue. With the new Trump administration coming into power, there are likely to be some significant changes to how the law exists and gets enforced during his tenure. Provided a 9th Justice is still yet to be added, the Supreme Court might still decide on the contraception mandate in the future.

This post was co-authored by Mr. Andy Hieber and Dr. David Nguyen. Mr. Hieber is a Hall Director at the University of North Dakota and a masters student in the UND Higher Education program.

Article originally appeared on Highereducationlaw.org (http://www.highereducationlaw.org/).
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