ACA birth control mandate likely headed to SCOTUS

The Eighth Circuit ruled on the birth control mandate of the Affordable Care Act this week, finding the process for certain entities to get an exemption from the requirement to provide birth control was not permissible under the Religious Freedom Restoration Act (RFRA). The Court upheld the lower court's decision that barred the government from requiring the plaintiffs in the case to provide birth control or follow the exemption process.

According to the 8th Circuit, the ACA generally requires employers to provide coverage for birth control under their healthcare plans, but allows a religious organization to obtain an exemption if it,

(1) has religious objections to providing healthcare coverage for some or all contraceptive services, (2) "is organized and operates as a nonprofit entity,” (3) “holds itself out as a religious organization,” and (4) complies with a self-certification process.

The self-certification process requires that the employer either (1) fill out a form and submit it to its insurance provider saying that it is a religious nonprofit and has a religious objection to providing certain (or all) types of birth control, or (2) fill out another form and submit it to HHS. The form must include the organization's name, why it qualifies to be exempted from the mandate, what its religious objections are, the specific types of birth control it objects to, the name and type of insurance plan it provides and the name and contact information for its insurance company. After either form is received, the insurance company must then make arrangements to provide birth control for the employees covered by the plan, either by paying itself, or making arrangements with a third party to do so.

The plaintiffs in this case, which included several religious colleges, objected to the mandate and exemption process as violating their religious beliefs because they would either be required to provide coverage for contraceptives or facilitate their employees' ability to access them by filling out the required exemption forms. The Court agreed with the plaintiffs, finding that the ACA mandate substantially burdened the religious freedom of the plaintiffs, as it would impose large monetary fines if they didn't comply and that the exemption process was not the least restrictive means for furthering the compelling government interest in providing birth control. The court suggested alternative measures, such as allowing the plaintiffs to file a simple notice, but not provide the insurance information, or for the government to provide the contraceptives itself through healthcare exchanges, clinics or subsidies.

The case signals a split among circuits on this issue, making it likely that the Supreme Court will hear oral arguments over the cases this term. For more information about these cases, see this article from SCOTUS Blog and the links to both 8th Circuit opinions, here and here.