The fascinating interplay that weaves between the First and Fifth Amendments to the U.S. Constitution, the Religious Freedom Restoration Act (RFRA) and the Patient Protection and Affordable Care Act (ACA) continues to march on in various jurisdictions around the country, with two recent examples being the United States Supreme Court’s grant of certiorari and remand of a Seventh Circuit case, Univ. of Notre Dame v. Burwell, Sec’y of Health and Human Services, et al., No. 13-3853 (7th Cir. Feb. 21, 2014), cert. granted sub nom., Univ. of Notre Dame v. Burwell, Sec’y of Health and Human Services, et al., No. 14-392 (Monday, Mar. 9, 2015) and a United States District Court’s grant of a stay of proceedings on March 18, 2015 in a Florida case, Christian and Missionary Alliance Found., Inc., et al., v. Burwell, Sec’y of Health and Human Services, et al., No. 2:14-cv-580-FtM-29CM (M.D. Fla., Mar. 18, 2015).

Around the country, a number of faith-based healthcare providers and religious organizations have filed a multitude of actions to stay or prohibit operation of the contraceptive coverage provisions of the ACA, 42 U.S.C. § 300gg-13(a)(4), to their healthcare operations or plans. As applied to religious or faith-based organizations, strong arguments have been raised that the ACA contraceptive “mandate” is too substantial a burden upon religious freedom and thus violates the First and Fifth Amendments of the United States Constitution and the RFRA, 42 U.S.C. § 2000bb et seq.

In February 2014, the United States Court of Appeals for the Seventh Circuit (Judge Richard Posner) upheld the District Court’s denial of a preliminary injunction that had been requested by the University of Notre Dame. In that case, in exercising its authorized exemption under the ACA from providing contraceptive services, Notre Dame objected to being forced to claim its exemption through usage of the government form in use at the time (EBSA Form 700). Notre Dame argued that completion of the form itself “triggered” contraceptive services which also then violated Notre Dame’s religious freedom. Univ. of Notre Dame v. Burwell, Sec’y of Health and Human Services, et al., No. 13-3853, slip op. at page 10, 13 (7th Cir. Feb. 21, 2014). On March 9, 2015, the Supreme Court vacated this decision and sent it back to the Seventh Circuit for further consideration in light of Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___ (2014), see Univ. of Notre Dame v. Burwell, No. 14-392, 575 U.S.___ (March 9, 2015).

In the Christian and Missionary Alliance case, the District Court for the Middle District of Florida granted a partial preliminary injunction in favor of faith-based plaintiffs who operated religious, nonprofit retirement communities, colleges and universities, enjoining HHS from enforcing the challenged ACA provisions during the pendency of the lawsuit. Christian and Missionary Alliance Found., Inc., No. 2:14-cv-580-FtM-29CM, (Opinion and Order, Feb. 3, 2015). However, over the objection of the Plaintiffs, on March 18, 2015, the District Court granted, in part, the federal government defendants’ request that the case be stayed pending resolution of the appeal in Eternal Word Television Network v. HHS, No. 14-12696 (11th Cir. 2014) and stayed the action for sixty days, or, fourteen days after issuance of the Eleventh Circuit decision in Eternal Word, whichever comes sooner. In the Eternal Word case, plaintiffs appealed following dismissal of a good portion of its challenge to the ACA contraceptive “mandate” provisions. See Eternal World Television Network, Inc., et al. v. Burwell, Sec’y of Health and Human Services, et al., No. 13-0521-CG-C (S.D. Ala., June 17, 2014).

For religious or faith-based healthcare organizations, keeping track of this rapidly evolving area of the law is admittedly difficult. What we do know, however, is that the Religious Freedom Restoration Act remains very much in play in healthcare and has been used successfully to strike  down statutory or regulatory provisions that press too hard upon sincerely held religious beliefs. Recent cases bear this out. In Hobby Lobby, the Supreme Court held that forcing closely held corporations to directly provide contraceptive health insurance coverage, where it violated the religious beliefs of the owners of the companies, violated the RFRA. In Little Sisters of the Poor Home for the Aged, et al., v. Sebelius, Sec’y of Health and Human Services, et al., 134 S. Ct. 1022 (2014), the Supreme Court granted an application for injunction and dispensed with use of the form prescribed by HHS – in direct contrast to the earlier decision of the Seventh Circuit in Notre Dame. Given that the Supreme Court has laid out some cognizable boundaries on the canvas – it will be interesting to see how both the Seventh and Eleventh Circuits will choose to fill in the details of this developing portrait.

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