Second Circuit is Latest Court to Reject Challenge to Contraception Mandate Accommodation

Steven D. Schwinn, John Marshall Law School

The Second Circuit this week became the latest court to reject religious organizations' challenge to the religious accommodation to the ACA's contraception mandate. The Second Circuit joined six other circuits in rejecting the surprising claim that a barely burdensome religious accommodation itself violates the Religious Freedom Restoration Act.

We posted most recently on the Tenth Circuit's ruling here.

With seven circuits now rejecting the novel claim (with no circuit accepting it), and with the accommodation designed around a Supreme Court order, one might reasonably wonder why plaintiffs keep bringing and appealing these cases. Surely they have better things to do with their time and money than to bring such transparently harassing and abusive claims. (Indeed, one might wonder: At what point should a court consider Rule 11 sanctions?) Still . . . .

The Second Circuit ruling is comprehensive and well analyzed, concluding that the accommodation (to simply notify HHS, either by form, or by letter) isn't substantially burdensome. But after 47 pages, here's the gist:

The burden that the accommodation places on Plaintiffs is merely one notification, equivalent to the burden historically placed on draft registrants to indicate their conscientious objections to military service. Once Plaintiffs avail themselves of the simple, non-burdensome means of opting out, the regulations do not require them to play any role in the provision of contraceptive coverage or to suffer punishments for not doing so. To the contrary, the accommodation relieves them of providing contraceptive coverage, and instead enlists third-party administrators to provide such coverage. If a regulatory scheme that might otherwise violate an objecting individual's rights under RFRA allows the objector to exempt himself from compliance via a simple, non-burdensome act of notification, there is no substantial burden. Furthermore, subsequent regulation of non-objecting parties in a manner that an objecting party finds offensive does not transform the act of opting out into a cognizable substantial burden. The rights conferred by the First Amendment and RFRA do not include a right to have the government or third parties behave in a manner that comports with an individual's religious beliefs.