Scholarly Commons @ IIT Chicago-Kent College of Law

Article Title

Unreasonable Religious Accommodation?: Fighting Irish Challenge the Opt-Out Form to the Affordable Care Act's "Contraceptive Mandate"

Authors

Emily A. Herbick, IIT Chicago-Kent College of Law

Abstract

The Patient Protection and Affordable Care Act of 2010 (ACA) has been controversial from its inception, especially in regard to the "contraceptive mandate," which requires certain employers with group health plans to provide contraceptive coverage for their female employees without cost-sharing. In order to respect both the federal statutory right to contraceptive coverage and the religious rights of employers who provide health insurance for their employees, regulations were promulgated that provided exceptions to the contraceptive mandate. For example, religious employers who incorporate as non-profits are exempt from providing contraceptive coverage to their employees under the ACA. To receive this accommodation, a religious non-profit must simply fill out a two-page self-certification form stating its religious exemption and send it to its health insurers or third-party administrators for its health insurance plan. The health insurer or third-party administrator would then have to foot the bill and provide contraceptive coverage for the religious non-profit's female employees.

Religious non-profits have taken issue with this accommodation, arguing that the self-certification requirement violates their religious rights under the Religious Freedom Restoration Act of 1993 (RFRA). RFRA proscribes the federal government from substantially burdening a person's exercise of religion unless the government can demonstrate that its action is (1) in furtherance of a compelling governmental interest and (2) the least-restrictive means of furthering that compelling governmental interest. Religious non-profits across the country have flooded the courts with RFRA challenges to the self-certification opt-out form to the contraceptive mandate.

In University of Notre Dame v. Sebelius, the Seventh Circuit was faced with an unprecedented request for preliminary injunction regarding the accommodation to the ACA's contraceptive mandate, which exempts the Catholic institution from providing contraceptive coverage to its students and employees provided it complies with the self-certification requirement. Notre Dame claimed that the accommodation process, in and of itself, was a violation of the RFRA. The issue is whether requiring Notre Dame to fill out the two-page self-certification form and send it to its health insurer and third-party administrator in order to opt out of providing contraceptive coverage to its students and employees as required by the ACA imposes a substantial burden on its religious rights under the RFRA. The answer is no. The Seventh Circuit correctly upheld the denial of Notre Dame's request for preliminary injunction, finding that the self-certification requirement did not violate the university's religious rights and thus Notre Dame failed to show a likelihood of success on the merits as required under the standard for granting a preliminary injunction.

This Comment discusses (1) the history of the RFRA and religious accommodation; (2) the ACA's contraceptive mandate and religious accommodation; (3) the merits of the Seventh Circuit's decision in Notre Dame; (4) applicable Supreme Court cases decided after Notre Dame; and (5) why the Seventh Circuit correctly decided Notre Dame. This Comment will argue that the Seventh Circuit correctly decided Notre Dame because the university failed to make a cognizable RFRA claim for the following two reasons: (1) the self-certification requirement is not a substantial burden on the university's religious rights and (2) it is the least-restrictive means of furthering a compelling governmental interest. As such, Notre Dame has failed to show a likelihood of success on the merits, and the Seventh Circuit properly affirmed the denial of its request for injunctive relief.

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Recommended Citation

Emily A. Herbick, Unreasonable Religious Accommodation?: Fighting Irish Challenge the Opt-Out Form to the Affordable Care Act's "Contraceptive Mandate", 10 Seventh Circuit Rev. 88 (2014).
Available at: https://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol10/iss1/4