More Fallout from Hobby Lobby

This week a Florida district court gave a ridiculous accommodation to religious employers who object to the contraceptive mandate of the Affordable Care Act. The new opinion confirms Justice Ginsburg’s dissent that Hobby Lobby was a decision of startling breadth with limitless potential applications.

The Mandate

The mandate, which requires employers to provide preventive health care to their women employees, has been undermined by one religious accommodation after another. At first, religious nonprofits were subject to the mandate. After they protested that requirement, however, the Obama administration gave them an accommodation.

Accommodation 1. Instead of providing the coverage, the employers were asked to fill out a form self-certifying that they religiously objected to contraception, and then to give that form to their insurance companies. The insurance companies would then provide the contraceptive coverage separate and apart from the employer. The employers were no longer providing contraceptive coverage. Instead, the government required the insurance companies to do so.

The nonprofits objected to that accommodation as well, arguing that, because the form “triggered” the provision of contraception, their religion was substantially burdened by signing the form. They argued they were morally complicit in providing contraception when they signed the form and thus their religion was burdened. Several circuit courts of appeals saw through that argument, ruling that it was the law that triggered the provision of contraceptive coverage, not the form, and that it would be unprecedented to free conscientious objectors from obligations to notify the government of their objection.

Accommodation 2. The Supreme Court’s order in the Wheaton College case, however, authorized Wheaton College not to send the form to its insurers, but instead to send it to directly to the Department of Health and Human Services (HHS). In response, the Obama administration passed a new rule that required objecting employers to inform HHS directly of their objection to the requirement, the type of insurance plan they have, and the contact information for the insurer or insurance plan administrator.

Florida Case

In the Florida case, colleges and retirement homes associated with The Christian and Missionary Alliance argued that sending this information to HHS substantially burdened their religion. Incredibly, the district court agreed with half their argument.

The court first ruled that requiring the employers to self-certify their eligibility for the accommodation and provide the self-certification to HHS did not substantially burden their religion because the notice requirement is “short” and “simple.”

Accommodation 3. The court then ruled that requiring the employers to provide information about their insurers did substantially burden their religion because it “facilitates the government’s ability to implement contraceptive coverage.” This is exactly the “trigger” argument that the appeals courts rejected. Yet the district court judge wrote that there was no reason for him to be drawn into the trigger argument. He simply accepted the plaintiffs’ moral argument that they didn’t want to provide information to the government.

In other words, the judge refused to address the legal issue in the case. Unlike the circuit courts, he was comfortable helping the employers meet their real goal—to do everything they can to make sure that no one provides contraception and no one uses it.

Leslie C. Griffin

Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las Vegas, William S. Boyd School of Law. Professor Griffin, who teaches constitutional law, is known for her interdisciplinary work in law and religion. She holds a Ph.D. in Religious Studies from Yale University and a J.D. from Stanford Law School.