Anti-Abortion Group Loses Appeal Against Contraceptive Mandate

PHILADELPHIA (CN) – Secular employers upended the federal health care law’s contraceptive mandate in the Supreme Court’s Hobby Lobby case, but the divided Third Circuit refused Friday to let the landmark ruling support an identical challenge by one anti-abortion group’s employees.

“Echoing the District Court, we state what we consider to be obvious: Hobby Lobby did not answer the RFRA question we confront today,” the lead opinion states, using the abbreviation for the Religious Freedom Restoration Act.

Though the Supreme Court credited Hobby Lobby’s RFRA claim against the contraceptive mandate in 2014, a federal judge in Pennsylvania set the stage for Friday’s appeal by ruling against the similar claims of an anti-abortion group called Real Alternatives. 

The federal appeals court based in Philadelphia affirmed 2-1, with U.S. Circuit Judge Kent Jordan dissenting.

“In Hobby Lobby, the Supreme Court found that an employer’s provision, not an individual’s maintenance, of coverage may violate RFRA,” Rendell wrote (emphasis in original). “As they did before the District Court, the Real Alternatives employees ignore this important distinction and attempt to stretch the holding of Hobby Lobby well beyond its factual confines. The dissent similarly misstates the applicability of Hobby Lobby, characterizing the issue there as ‘very like the one at issue here.’”

Jordan argued in his 55-page dissent that the contraceptive mandate of the Patient Protection and Affordable Care Act silences faith-based objections.

“According to the government, the mandate has nothing to do with deep questions about the beginning of life, or the boundaries of moral culpability, or about faith and one’s obligations to God,” Jordan wrote. “Religious beliefs are not being burdened in any meaningful sense, so people should just stop complaining.”

Pennsylvania-based Real Alternatives says it provides “life-affirming alternatives” to abortion and abstinence-education services. It sued the government in 2015, claiming that it should be entitled to the same exemption from the Affordable Care Act that the government affords to houses of worship.

Though all three of its full-time employees oppose contraceptive use, the organization was forced to pay for contraceptive insurance for its employees after its insurer stopped omitting such coverage from its plan.

In ruling against Real Alternatives at summary judgment, a federal judge found the group itself did not have an equal-protection claim under the Fifth Amendment and that the individual employees could not show that the coverage substantially burdened their rights under the RFRA.

Affirming that ruling Friday, Rendell wrote for the majority that Real Alternatives was not a religious employer and that it has not and cannot show that the contraceptive mandate significantly burdened it.

“Real Alternatives is in no way like a religious denomination or one of its nontheistic counterparts — not in structure, not in aim, not in purpose, and not in function,” Rendell wrote.

Treating single-issue nonprofits like Real Alternatives the same as houses of worship when the disagree on a legal matter would expand religious exemptions “beyond what is constitutionally required,” she wrote.

“If mere disagreement, however vehemently felt, were sufficient to bring an equal protection claim, virtually any law implicating religion would be rendered moot because the exemption would be too easy to invoke,” Rendell added.

Rendell continued in a footnote that kowtowing to any disagreement with federal or local laws could lead to fewer religious exemptions because of “how easy it would be to utilize.” She also cited the already “immense pressure to repeal the thousands of religious accommodations that have been enacted.”

Rendell also disputed that an employer’s provision of insurance coverage constitutes support or advocacy for such services.

“Checking off a box to be eligible for reimbursement of services—services of the employee’s choosing — in no way indicates, let alone suggests, support or advocacy for that service,” Rendell wrote.

Jordan meanwhile insisted that lawmakers failed to sufficiently tailor the contraceptive mandate, citing “several other options the government could have chosen to enforce its regulation without impinging on the right of religiously devout individuals.”

Jordan also took issue with the majority’s worry that providing an exemption to Real Alternatives would allow other groups to claim similar exemptions, claiming such a stance was “hyberbolic” and no such floodgates would be opened.

“The market managed to provide coverage options before the ACA and it is a good bet it can do so again,” he wrote.

Real Alternatives was represented by Alliance for Legal Freedom, a Christian legal organization based in Scottsdale, Arizona.

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