Last week, the Eleventh Circuit Court of Appeals upheld the contraceptive mandate of the Affordable Care Act (ACA) against a religious freedom challenge brought by a Catholic media network (Eternal Word Television Network (EWTN)) and several Atlanta-based Catholic archdioceses, bishops, and social service agencies. The Catholic entities unsuccessfully argued that the government’s accommodation of their religious objection to the ACA’s contraceptive benefit requirement (which merely requires the religious employers to notify either their insurance company or the government of that objection) substantially burdened their religious freedom in violation of the Religious Freedom Restoration Act (RFRA).
The Eleventh Circuit became the eighth of nine circuit courts to rule for the government. Several of those precedents are currently under review by the Supreme Court under the name Zubik v. Burwell. The Court will hold oral argument in Zubik on March 23.
With Justice Antonin Scalia’s death, however, there is a possibility that the Justices will split 4-4 on Zubik. If that deadlock occurs, the courts of appeals’ rulings will stand, and, fortunately, for now, the interests of employees will be protected in eight of nine circuits.
Catholic women and their dependents, as well as non-Catholic employees of Catholic employers, have particular reason to celebrate the Eleventh Circuit’s ruling about these Catholic entities. As Catholics for Choice and nine other Catholic organizations argued in an amicus brief submitted to the Court in Zubik, “if the Supreme Court were to rule in favor of the bishops’ demands, hundreds of thousands of employees at religiously-affiliated nonprofit organizations could be deprived of their conscience rights, religious freedom and access to healthcare.”
Judge Jill Pryor’s opinion in EWTN v. Burwell is especially well-written. Unlike some courts of appeals, the Eleventh Circuit thoroughly addressed all aspects of the RFRA argument. The court ruled for the government on all three elements of the RFRA claim, concluding the plaintiffs’ religion was not substantially burdened, the government had numerous compelling interest in the mandate, and the accommodation was the least restrictive means of meeting the government’s compelling interests.
First, on the substantial burden question, the court rejected the Catholic entities’ argument that notifying the government substantially burdened their religion because it “would require courts to defer to a religious adherent’s sincere belief that the government is forcing her to choose between her religious belief and paying a substantial fine, even when the religious adherent is objectively wrong about how the law operates and what action the government requires her to take” (emphasis added).
Second, the court identified compelling interests—plural—in the accommodation, including interests in reducing the rate of unintended pregnancies, assuring women the equal benefit with men of preventative care, and improving the health of women and children.
Third, the opinion powerfully rejected the plaintiffs’ and dissenting Judge Tjoflat’s glib arguments about the least restrictive means. The plaintiffs argued that women should find their own contraceptive insurance policies, whether through the ACA’s exchanges or elsewhere. Judge Tjoflat suggested that Congress and HHS should enact regulations that would make the insurance company a “plan administrator for purposes of contraceptive coverage without requiring the eligible organization to communicate its religious objection to anyone.”
The first problem is the plaintiffs’ option is not less restrictive. By making it much more difficult for women to find contraceptive coverage, plaintiffs’ option increases the risks of unwanted pregnancy and unequal preventative and healthcare coverage for women.
The second problem is, the judge’s option doesn’t work. As Judge Pryor shrewdly pointed out, the newly-appointed administrator insurance companies under the dissent’s plan would still have no way of knowing that the employer opposed contraception. This “silent omission of contraceptive coverage” would cause gaps in contraceptive coverage because no one would ever know women weren’t getting access to their contraceptive benefit.
The silent option reminds us that the real goal of plaintiffs has always been to block contraceptive access for all women.