Health Law

8th Circuit finds that signing birth-control waiver is substantial burden; opinion splits circuits

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The birth-control mandate under the Affordable Care Act amounts to a substantial burden for a residential-care facility that claims to have an integral Christian identity, a three-judge panel from 8th U.S. Circuit Court of Appeals ruled Thursday from St. Louis.

The opinion conflicts with a separate finding from the Denver-based 10th U.S. Circuit Court of Appeals, possibly setting the stage for another U.S. Supreme Court case. It also goes against a decision by the U.S. Court of Appeals for the D.C. Circuit. The Washington Post and The Hill have stories.

If a group has religious objections to providing birth control coverage, they can sign a waiver and the U.S. government will arrange a third-party provider, the Atlantic reports. Parties in the 8th and 10th Circuit cases argue that signing the waiver amounts to condoning birth control.

The Becket Fund for Religious Liberty represents plaintiffs in both the 8th Circuit and the 10th Circuit appeals. The 8th Circuit case involves CNS International Ministries, a non-profit group with more than 50 employees who provides residential services to people with behavioral and addiction problems. Another party, Heartland Christian College, provides post-secondary education to employees and residents of CNS. According to the 8th Circuit opinion (PDF), the plaintiffs promote “certain moral and ethical standards in their employees, including…a belief in the sanctity of life which precludes abortion on demand.”

“Applying the substantial-burden test set forth in Hobby Lobby, we conclude that CNS and HCC have established that they are likely to succeed on the merits of their RFRA challenge to the contraceptive mandate and the accommodation regulations—the most significant factor in determining whether a preliminary injunction should issue,” Judge Roger Wollman wrote for the court. “The question here is not whether CNS and HCC have correctly interpreted the law, but whether they have a sincere religious belief that their participation in the accommodation process makes them morally and spiritually complicit in providing abortifacient coverage. Their affirmative answer to that question is not for us to dispute.”

The 10th Circuit case involves the Little Sisters of the Poor, a group of Catholic nuns that provides elder services. On July 14, the 10th Circuit issued an opinion (PDF) rejecting their argument that signing the waiver amounted to condoning birth control. On September 3, the court denied (PDF) an en banc hearing, and the nuns have filed a cert petition (PDF) with the U.S. Supreme Court.

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