It was a rough week for Catholic groups arguing that the federal Religious Freedom Restoration Act protects them from being forced to facilitate the provision of contraception to their employees in violation of the groups’ religious beliefs. As you might recall, religious liberty won big at the Supreme Court last year, when the court held that forcing religious businesses to provide contraception in their healthcare plans violated RFRA. But there was a second line of cases that I’ve been referring to as the “accommodation cases,” in which religious groups like the Little Sisters of the Poor, Catholic universities like Notre Dame, and other Catholic employers have been challenging the so-called accommodation that the Obama administration fashioned to let groups opt-out of providing coverage. This week, two appeals courts rejected arguments that the accommodation facilitates precisely the contraception coverage that the groups morally object to.
On Tuesday, the Seventh Circuit rejected (PDF) the University of Notre Dame’s argument that the accommodation regulations require it to contract with an insurer which, because of the contract, then provides contraception coverage to Notre Dame’s employees. The decision is a master work in missing the point. Notre Dame had argued that such a contract violates its religious opposition to contraception. Bizarrely, a divided panel of the court held that, “Although Notre Dame is the final arbiter of its religious beliefs, it is for the courts to determine whether the law actually forces Notre Dame to act in a way that would violate those beliefs.” The panel decision goes on in conclusory fashion to note that “Notre Dame thus could ask [its insurance provider] to outsource contraception coverage for both students and staff to an entity that does no business with Notre Dame,” despite the fact that requiring Notre Dame to ask its provider to facilitate the contraception coverage is precisely the activity Notre Dame finds violates its religious beliefs.
Then, on Wednesday, the D.C. Circuit chimed in (PDF), with its rejection of the Priests for Life petition for en banc rehearing of its accommodation case. In this case, which includes the Roman Catholic Archbishop of Washington as an employer, the religious groups objected to filling out the accommodation form required by HHS since the act of filling out the form causes their insurers to provide contraception. Again, in a divided decision, the court seemed to struggle with the concept that merely because HHS calls something an “accommodation,” it does not follow that religious belief is actually being accommodated. The author of the panel decision contended:
Our panel opinion explains that it is the mandate on insurers that causes Plaintiffs’ employees to receive contraceptive coverage, and not anything Plaintiffs are required to do in claiming their accommodation. The panel thus held that Plaintiffs suffered no substantial burden triggering RFRA strict scrutiny. The dispute we resolved is legal, not religious. Under the ACA regulations, a woman who obtains health insurance coverage through her employer is no more entitled to contraceptive coverage if her employer submits the disputed notice than if it does not. The ACA obligation to provide contraceptive coverage to all insured women does not depend on that notice. Nothing in RFRA requires that we accept Plaintiffs’ assertions to the contrary.
This seems to miss an obvious causal step: the “mandate on insurers” at issue here is not merely a general ACA requirement to provide contraception coverage, but a series of cost-sharing mandates that are not triggered unless the religious groups fill out the form. In a powerful dissent, Judge Janice Rogers Brown explains why this is nonsense:
[T]his case is not “paradoxical” because Plaintiffs object to regulatory requirements the government intended as a religious accommodation. That the government’s expressed intent in enacting the regulations at issue was to allay religious adherents’ concerns about the contraception mandate is not determinative of the ultimate question of whether Plaintiffs were in fact accommodated. Where the government imposes a substantial burden on religious exercise and labels it an “accommodation,” that burden is surely as distressing to adherents as it would be if imposed without such a designation. Therefore, heightened skepticism is not appropriate. We should look at Plaintiffs’ claims as we would any RFRA claim. After all, in the substantial burden analysis, the government’s motivations— no matter how benevolent—are irrelevant; we ask only whether the government’s action operates to place “substantial pressure on an adherent to modify his behavior and to violate his beliefs.”
Plaintiffs identify at least two acts that the regulations compel them to perform that they believe would violate their religious obligations: (1) “hiring or maintaining a contractual relationship with any company required, authorized, or incentivized to provide contraceptive coverage to beneficiaries enrolled in Plaintiffs’ health plans,” Pet. for Reh’g En Banc at 3; and (2) “filing the self-certification or notification,” id. at 4. Plaintiffs have therefore shown both that they are being compelled to modify their behavior and that, if undertaken, the modification would be a violation of their religious beliefs.
The panel did not dispute that federal law operates to compel Plaintiffs to maintain a relationship with an issuer or TPA that will provide the contraceptive coverage and to execute the self-certification or alternative notice. Their disagreement with Plaintiffs is about the significance of those compelled acts; in other words, the panel rejected the “adherents’ claim about the religious meaning of the undisputed operation of  federal regulation[s].”
The plaintiff groups in Priests for Life have already announced their intention to seek further review at the Supreme Court. The University of Notre Dame can do the same or seek en banc rehearing at the Seventh Circuit. Either way, these cases could only be considered by the Supreme Court at the earliest some time next term, which starts in October. In light of the fractured decisions in both courts, there’s a better than usual chance the Supreme Court will take the case.