ACA Goes to Supreme Court Again

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Another case on the Affordable Care Act (ACA) is set to be heard by the U.S. Supreme Court in 2016.  This, the fourth ACA related case to be heard by the Court, challenges the contraceptive coverage requirement for religiously affiliated non-profits, such as schools and hospitals.

The ACA requires non-grandfathered group health plans to cover certain preventive health services with no cost-sharing, including FDA-approved contraceptive methods and counseling.  Group health plans maintained by religious employers, such as churches, are exempt from the contraceptive requirement.  Certain religiously affiliated non-profit employers with religious objections to covering some or all of the mandated contraceptive services are eligible for an accommodation that ensures they are not required to directly provide or pay for coverage but also ensures their employees will have access to contraceptive coverage.

These employers can self-certify on EBSA Form 700 or provide written notice to the Department of Health and Human Services stating they are a non-profit entity that holds itself out as a religious organization and they oppose providing contraceptive coverage on religious grounds.  Upon receipt of Form 700 or written notice, the carrier or third-party administrator arranges and pays for the contraceptive coverage.

Several religiously affiliated non-profit employers have challenged the accommodation by arguing they should be treated similarly as religious employers and exempt from the requirement.  They claim that self-certifying their eligibility for the accommodation triggers the provision of contraceptive coverage to their employees contrary to their religious beliefs.  They argue that their religious freedom is being violated since they must either claim the accommodation or face substantial penalties for not providing contraceptive coverage.

To date, eight federal circuit courts have decided cases challenging the accommodation.  Seven courts upheld the accommodation but the 8th Circuit Court of Appeals recently became the first to rule against the accommodation.

The Supreme Court will now decide whether the contraceptive mandate and the accommodation violate the Religious Freedom Restoration Act (RFRA).  Under RFRA, the government must show that the contraceptive mandate serves a “compelling government interest” to justify a “substantial burden” on the religious freedom of these non-profit employers.  The government must also show that the accommodation offered to these employers is “the least restrictive means” to achieve the government’s compelling interest.

Oral arguments will likely take place in March 2016 with a decision expected in June 2016.