UPDATES & ANALYSIS

Eighth Circuit tees up the ACA contraception mandate (and accommodation) for another SCOTUS review

by Frank Harty | September 18, 2015

By Frank Harty

The stage is set for the United States Supreme Court to rule on the contraception opt-out of the Affordable Care Act.  Yesterday, the Eight Circuit Court of Appeals in Sharpe Holdings, Inc. v. U.S. Dept. of Health and Human Services ruled that the district court was correct to enjoin the government from enforcing the law’s contraceptive provision against a number of religiously affiliated employers. 

The Affordable Care Act requires private health insurance plans to provide coverage for preventive care and screenings for women.  The Administration’s regulatory mandate implementing that provision required health plans to fully cover, without copay, all drugs and devices labeled by the Food and Drug Administration as “contraception.”  The FDA’s definition of contraception is broad enough to include “emergency contraception” drugs and devices with post-fertilization or life ending mechanisms. 

The plaintiffs in Sharpe (and the companion case, Dort College v. Burwell) argued that forcing employers to provide coverage of life ending drugs violates their conscientious belief.  The regulations do allow religiously affiliated organizations to opt-out of that requirement, but the insurers must still provide the coverage, and the plaintiffs argued that this process still makes them complicit in providing contraceptives.  Thus, the plaintiffs argued that the opt-out provision violates the Religious Freedom Restoration Act. 

Judge Roger Wollman, joined by Judges Benton and Colloton, wrote that the court had to defer to the plaintiffs’ “sincere religious belief that their participation in the accommodation process makes them morally and spiritually complicit in providing abortifacient coverage.” Relying upon the substantial burden test set forth in the Supreme Court’s Hobby Lobby decision, the Eighth Circuit ruled that the plaintiffs established they were likely to succeed on the merits of the Religious Freedom Restoration Act argument and, therefore, affirmed the issuance of orders enjoining the government from imposing the mandate and opt out on the plaintiffs pending the final outcome of the litigation. 

There is now a clear split in Circuit court decisions, which substantially increases the likelihood that the Supreme Court will take the matter up in the term that begins in October.