JURIST Guest Columnist Ayesha Khan of Americans United for Separation of Church and State discusses the contraceptive coverage requirement of the Affordable Care Act and the current cases challenging the requirement …

On April 24, JURIST ran a column by Joseph LaRue of the Alliance Defending Freedom, which represents a company that seeks an exemption from an Affordable Care Act regulation that requires health insurance plans to include coverage for a wide range of preventive services, including contraceptives. Mr. LaRue likened the regulatory requirement to a law that would obligate a PETA-supporting company to provide employees with a weekly allowance of meat and chicken. What he omitted is that, to be analogous, the law would have to allow employers to opt out of providing the weekly allowance at all and instead, to pay a tax that is far lower than the allowance itself. Meanwhile, the tax would allow the federal government to subsidize employees’ purchasing their own wild salmon and organic meats. Mr. LaRue’s half-baked analogy obfuscated rather than “explained” the relevant legal issues.

As the US Court of Appeals for the Fourth Circuit put it, the ACA “leaves large employers with a choice for complying with the law—provide adequate, affordable health coverage to employees or pay a tax” of $2,000 per employee (beyond the first 30 employees). Because the tax is actually far lower than the typical cost of providing insurance in the first place, choosing to pay the tax actually would yield substantial savings to employers. And nothing would preclude employers who are concerned about putting themselves at a competitive disadvantage from passing the savings on to employees in the form of healthcare stipends or increased salaries.

The availability of this option was of considerable interest to the US Supreme Court Justices during the oral argument in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius. That makes sense because the companies’ legal challenge is brought under the Religious Freedom Restoration Act, which provides relief against “substantial burdens” on religious exercise, which arise only when a litigant is forced to violate his or her religion. When the challenged regulations offer a viable option that does not create a religious conflict, a claim must fail. Yet, in briefing the case, the attorneys for the companies all but ignored the availability of this option, an oversight that Mr. LaRue repeated in his column. The US didn’t do much with it either because the administration does not want to highlight that employers retain the prerogative to discontinue their plans. Luckily, Americans United for Separation of Church and State—where I serve as Legal Director—stepped in to fill the void, submitting an amicus brief that developed this argument at length.

Americans United has also stepped in to represent three students at the University of Notre Dame, which has brought its own challenge to the ACA regulations, marking the first time that affected women have been litigants in any of the challenges to the ACA’s contraceptive-coverage provisions. Notre Dame’s case has even less merit than the one pending before the Supreme Court. The University has the same options as for-profit employers but it, like all other nonprofit organizations, has yet a third option known as the “accommodation”: it can continue to provide health insurance while obtaining an exemption from the contraceptive-coverage requirement by alerting its insurer (or, insofar as it self-insures, its “third party administrator”), which then provides the coverage on its own, directly to the students and employees, without imposing any costs on the University.

Many religiously affiliated nonprofits, including Catholic organizations like Georgetown University, welcomed this accommodation. The University of Notre Dame did, too—at least at first. In the fall of 2013, the University informed [PDF] its faculty that it would be taking advantage of the accommodation. After an alumni group pressed 
[PDF] the University to litigate, however, the University made an abrupt about-face, filing a federal court challenge in December 2013, almost a year after the accommodation was proposed, five months after it was finalized and mere weeks before it was slated to go into effect. With only weeks to spare, the University argued that the regulations presented a grave emergency and that pursuing the accommodation would violate religious dictates of the highest order.

Like the attorneys for the for-profit companies, the University’s counsel simply ignored the University’s ability to pay a tax instead of maintaining its insurance plan for employees; and its counsel likewise ignored that the University could discontinue its student plan while paying no tax at all, because nothing in the ACA or its regulations requires universities to furnish students with health insurance. Rather, the University focused its arguments on the accommodation, to which it objected on the grounds that the opt-out form would “trigger” the provision of objectionable coverage.

On February 21, 2014, the Seventh Circuit rightfully rejected that argument, reasoning as follows:

What makes this case and others like it involving the contraception exemption paradoxical and virtually unprecedented is that the beneficiaries of the religious exemption are claiming that the exemption process itself imposes a substantial burden on their religious faiths; the process of claiming one’s exemption from the duty to provide contraceptive coverage is the opposite of cumbersome. It amounts to signing one’s name and mailing the signed form to two addresses.

Indeed, under the University’s view, a judge who recuses himself from a death-penalty case could claim that he has a RFRA right to refuse to recuse in writing because that would facilitate the assignment of a new judge to hear the case. A wartime conscientious objector could claim an exemption from appearing at the draft office to put his objection in writing because that would pave the way for someone else to be assigned in his place. But those claims—like the University’s—should fail because the authorization for a new judge’s assignment, for another soldier to be drafted and for contraceptives to be covered, arises from the government’s judgment that it should be so, not from the conscientious objector’s submission of the form.

But even if the University was forced to retain its health-insurance plans and even if the opt-out form itself burdened religious exercise, the University’s claim should still fail because the challenged regulations withstand strict scrutiny. The US has a much higher rate of unintended pregnancy than other developed nations—accounting for nearly half of all pregnancies in the nation. When faced with an unintended pregnancy, 42 percent of women choose to have an abortion. Making contraceptives more accessible, and available free of charge, will have a dramatic impact on these statistics. Myriad social-science studies
demonstrate that even exceedingly low barriers—whether financial or logistical—can deter people from accessing benefits and services. One study [PDF] showed that when condom prices rise from 0 to a mere 25 cents, sales decline by a whopping 98 percent. The same result holds [PDF] when the barrier is logistical rather than financial. Dispensing contraceptives for 3 months, rather than an entire year, at one time, results in a 30 percent greater chance of unintended pregnancy and a 46 percent greater chance of obtaining an abortion.

The results are greatest when both financial and logistical barriers are removed. Making the most convenient forms of contraception—those requiring the least effort to maintain—available at no cost to young women resulted
 in a staggering 80 percent drop in the rate of unintended pregnancy, leading researchers to predict that the ACA’s contraceptive coverage regulations could “prevent as many as 41-71 percent of abortions performed annually in the US.” The regulations heed this social-science data by providing women with access to cost-free contraceptives through pre-existing healthcare providers, while allowing objecting employers to opt out of providing the coverage themselves.

The purposes behind the regulations highlight yet another reason that the University’s claim should fail. As Justice Kagan observed 
[PDF] during the Hobby Lobby and Conestoga Wood oral argument, the Establishment Clause precludes the award of religious exemptions that override other significant interests or impose burdens 
on third parties. Yet, the University seeks to use its religion as a trump card to override the interests of literally thousands of women in receiving a benefit that provides a lifeline to greater security in their bodies and futures—personal autonomy interests 
that lie “[a]t the heart of liberty.” Well-established legal norms require the courts to interpret statutes to avoid such constitutional improprieties.

The government bent over backwards to accommodate religious concerns when it promulgated regulations under the ACA. It chose to provide an opt-out from the contraceptive-coverage requirement—a benefit that it did not provide for a multitude of other medical procedures that various religious groups oppose, including mental-health care and vaccinations. Objectors would be well advised to heed the advice of St. Jerome in his introductory remarks to the Epistle to the Ephesians: “qui donati dentes non inspiciuntur.” In other words, don’t look a gift horse in the mouth; you’ll most certainly appear ungrateful and you might even get bit.

Ayesha N. Khan is the Legal Director of Americans United for Separation of Church and State. She is lead counsel for the student-interveners in University of Notre Dame v. Sebelius.

Suggested citation: Ayesha Khan, Not Taking Yes for an Answer: 
Hobby Lobby, Conestoga Wood and the University of Notre Dame, JURIST-Hotline, May 30, 2014, http://jurist.org/hotline/2014/may/ayesha-khan-contraception-notre-dame.php.