Appeals Court Again Upholds Obamacare’s Contraceptive Mandate

The contraceptive mandate in the Patient Protection and Affordable Care Act does not impose a “substantial burden” on the free exercise of religion, a three-judge federal appeals court ruled earlier this month.

The 2-1 ruling is the latest in a series of circuit court decisions around the country upholding the ACA’s contraceptive mandate.

Grace Schools, the Diocese of Fort Wayne-South Bend Inc., and several other religious nonprofits sought an exemption from the ACA, which mandates coverage for contraceptive methods, sterilization and counseling for women of reproductive age.

An “accommodation” within the ACA entitles workers of religious nonprofits to full contraceptive coverage, while distancing employers who object from having to pay for it.

“The accommodation has the legal effect of removing from objectors any connection to the provision of contraceptive services,” wrote U.S. Circuit Judge Ilana Diamond Rovner of the U.S. Court of Appeals for the 7th Circuit, in a 38-page decision issued Sept. 4.

Rovner said that every other circuit court considering whether the contraceptive mandate imposes “a substantial burden on religious exercise has come to the same conclusion.”

But in a dissenting opinion, U.S. Circuit Judge Daniel A. Manion blasted the accommodation as a “long and winding extension cord the government uses to power its contraceptive mandate.”

“The court is wrong: A thorough examination reveals that the accommodation’s tangled mess is hiding the fact that the extension cord gets its power from the nonprofits’ health plans and must be plugged in before it will work,” he wrote in a 36-page dissent.

The 2-1 decision overturns an injunction issued by the district court in favor of the plaintiffs.

The plaintiffs in Grace Schools, et al. and Diocese of Fort Wayne-South Bend Inc., v. Burwell, which sued the U.S. Department of Health and Human Services, the Food and Drug Administration and the Health Resources and Services Administration, are among dozens of religious nonprofits to object to the ACA’s contraceptive mandate.

Over 40 cases in which nonprofits claim the ACA’s accommodation is insufficient are making their way through the courts, according to Laurie Sobel and Alina Salganicoff of the Kaiser Family Foundation.

In fact, the 7th Circuit issued a similar decision in May in University of Notre Dame v. Sebelius, and in July in Wheaton College v. Burwell.

Other appeals courts in New York, Philadelphia, D.C., Cincinnati, New Orleans and Denver have found in favor of the ACA’s accommodation clause.

Legal challenges to the ACA’s contraceptive mandate come from two groups, for-profit corporations and nonprofit organizations.

In the landmark Burwell v. Hobby Lobby Stores Inc., a private employer in Oklahoma City, the Supreme Court last year pronounced the accommodation a “less restrictive means” to provide contraceptive coverage, but did not decide whether the accommodation is lawful, according to Sobel and Salganicoff.

The two authors, however, write that the issue over the legality of the contraceptive mandate under the ACA may well end up being decided by the U.S. Supreme Court.

Cyril Tuohy is a writer based in Pennsylvania. He has covered the financial services industry for more than 15 years. He can be reached at cyril.tuohy@innfeedback.com.