Michigan Catholic Conference, et al. v. Burwell, et al.

The case concerns the religious exemption and accommodation to the contraceptive mandate under the Patient Protection and Affordable Care Act (“ACA”), which requires health insurance plans to provide coverage for contraception. Plaintiffs were religious organizations who claimed that covering contraception on employee health insurance violated their religious freedom.

An exemption from the mandate was available for religious employers, employers with fewer than fifty employees, and grandfathered plans. An accommodation was available for non-profit entities and closely held corporations objecting to providing contraceptive coverage on religious grounds. These entities could exercise the accommodation by (1) completing a two-page self-certification form to the health insurance issuer or third party administrators (“TPA”) or( 2) sending a notice substantially similar to the self-certification form directly to the U.S. Secretary of Health and Human Services. These two procedures were functionally equivalent in that the employers were providing the same information but to different parties, who then had to bear the cost of providing contraception coverage to the employees of these entities. Whereas the employers no longer had to pay for contraceptive coverage, the insurance issuers and TPAs for these entities would continue to provide coverage for individuals insured under the plans.

In the first instance, nine plaintiffs (including three religious employers eligible for the exemption and six non-profit entities eligible for the accommodation) unsuccessfully challenged both the exemption and accommodation, a decision affirmed by the Court of Appeals for the Sixth Circuit. Plaintiffs then filed a writ of certiorari to the Supreme Court challenging only the accommodation under the Religious Freedom Restoration Act (“RFRA”). The Supreme Court vacated the Sixth Circuit’s judgment and remanded the case back for further consideration in light of another Supreme Court case known as Hobby Lobby, in which the Supreme Court held that requiring closely-held, for-profit corporations to provide contraceptive coverage violated RFRA.

The Sixth Circuit held that there was not RFRA violation. The Court distinguished the case at hand from Hobby Lobby in that the latter challenged the general obligation under the contraceptive mandate, whereas the current case concerned the process certain employers had to follow in order not to comply with the mandate. The Court concluded that whether a law imposes a substantial burden on a party under RFRA is a question of law, and affirmed its original decision that the accommodation provision, which only required the objecting entities to provide simple information on a form, did not violate RFRA. Given the unlikelihood of success on the merits, the Sixth Circuit concluded that the district courts did not abuse their discretion by denying plaintiffs preliminary injunctive belief.

The Court also re-issued and re-affirmed its prior opinion that neither the exemption nor the accommodation provision violated the First Amendment to the U.S. Constitution, the Administrative Procedure Act, or RFRA. Specifically, the Court found that there was no need for the three plaintiffs who were eligible for the exemption to object to the contraceptive mandate because nothing had changed for them: they did not need to provide or pay for contraceptive coverage prior to or after the enactment of the ACA.

“Hobby Lobby tells us, in sum, that the government cannot compel closely held companies with sincere religious objections to provide contraception coverage to their employees. But that issue is fundamentally different from the issue at the heart of this case – whether an entity’s decision not to provide such coverage by exercising an accommodation is, by itself, a violation of that entity’s religious beliefs. We upheld this accommodation against a RFRA challenge in our initial opinion. Nothing in Hobby Lobby changes this analysis.” Page 11.

“  ‘In other words, unlike in Hobby Lobby, the Plaintiffs do not challenge the general obligation under the ACA to provide contraceptive coverage. They instead challenge the process they must follow to get out of complying with that obligation.’ (quoting Little Sisters of he Poor, 2015 WL 4232096, at *4).” Page 12.

“The process for making one’s objections known is straightforward, and not substantially burdensome … It is, in fact, difficult to think of a more de minimis request: tell us who you are, and tell us how we can contact you.” Pages 15-16.