Appeals court backs HHS birth control opt-out notice mandate

A three-judge panel at the 11th U.S. Circuit Court of Appeals ruled 2-1 Thursday against religious employers that object to the U.S. Department of Health and Human Services (HHS) process for administering a birth control benefits mandate exemption process. 

The Patient Protection and Affordable Care Act of 2010 (PPACA) requires employer-sponsored health plans to cover a standard package of preventive services without imposing deductibles or other cost-sharing requirements on the enrollees. In 2012, HHS Secretary Kathleen Sebelius approved an HHS Health Resources and Services Administration (HRSA) recommendation that the PPACA preventive services package should include birth control benefits.

Religious employers can opt out of providing contraceptive coverage, but they’re supposed to tell HHS of their decision, so HHS can arrange for the plan enrollees to get contraceptive coverage through other means.

See also: Final birth control rule issued for faith groups

The Eternal World Television Network Inc., the Roman Catholic Archdiocese of Atlanta and other religious employers have sued over the opt-out notice requirement, saying it violates their rights under the Religious Freedom Restoration Act (RFRA) by making them complicit in efforts to provide contraceptive coverage.

The 11th Circuit majority disagreed. The majority said RFRA does not require federal courts to recognize a substantial burden on the exercise of religion simply because a religious adherent says there is one. A third judge said he believes the opt-out notice requirement does violate RFRA, by forcing the employers to do something that they believe is wrong or face the possibility of having to pay large penalties.

R. Robin McDonald covered the case in full for the Daily Report, an ALM publication.