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Posted: August 24, 2015

Second Circuit Holds that Applying for ACA Accommodation is not a Substantial Burden Violating RFRA

On August 7, 2015, the Second Circuit issued a decision in Catholic Health Care System, v. Burwell, 14-427-cv, reversing the EDNY and holding that “regulations promulgated under the Patient Protection and Affordable Care Act that allow religious non-profit employers to opt out of providing contraceptive coverage do not themselves substantially burden Plaintiffs’ religious exercise in violation of the Religious Freedom Restoration Act.”

In Catholic Health Care System, the plaintiff “religiously-affiliated organizations that did not qualify for the ACA’s ‘religious employer’ exemption,” brought an action asserting that applying for “the so-called ‘accommodation,’ which applies more broadly to religious non-profit organizations that object to providing contraceptive coverage” violated their rights under RFRA. The EDNY granted the plaintiffs summary judgment, but the Second Circuit reversed, explaining:

At the threshold, RFRA requires us to assess whether Plaintiffs have shown a substantial burden on their exercise of religion. If the law’s requirements do not amount to a substantial burden under RFRA, that is the end of the matter.

. . .

In analyzing the substantiality of a burden under RFRA, we employ an objective test. RFRA plaintiffs must show that the government has imposed a burden that is substantial, not simply one that they believe is substantial. To be sure, the government concedes, and we do not doubt, the sincerity of Plaintiffs’ belief that providing, paying for, or facilitating access to contraceptive services is contrary to their faith. Nor do we doubt that, in Plaintiffs’ religious judgment, participation in the accommodation violates this belief. However, accepting the sincerity of Plaintiffs’ beliefs does not relieve this Court of its responsibility to evaluate the substantiality of any burden on Plaintiffs’ religious exercise. Although a court accepts a litigant’s sincerely held religious beliefs, it must assess the nature of a claimed burden on religious exercise to determine whether, as an objective legal matter, that burden is “substantial” under RFRA.

. . . [W]hether a law substantially burdens religious exercise under RFRA is a question of law for courts to decide, not a question of fact.

(Internal quotations and citations omitted). With this background, the Second Circuit held that the ACA’s requirement that a plaintiff “send a single sheet of paper communicating its eligibility and religious objection” did not constitute a substantial burden, rejecting arguments that (1) the heavy fines for non-compliance constituted a substantial burden, noting that “[a]n objectively insubstantial burden does not become substantial simply because a RFRA plaintiff faces substantial burdens in the alternative” and (2) obtaining the accommodation, while exempting plaintiffs, nonetheless made them complicit in the “provision of contraceptive coverage by the government and third parties.”

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