Legal challenges to controversial provisions in the Affordable Care Act (ACA) continue to work their way though the courts.  In a follow-on to the Supreme Court’s decisions in Burwell v. Hobby Lobby and Zubik v. Burwell (cases addressing how the ACA’s contraceptive coverage mandate applies to companies and religious organizations holding religious objections to certain forms of contraception) a secular pro-life group, Real Alternatives, Inc., has sued the federal government challenging the requirement that the company provide contraceptive coverage to its employees through its health plan.

Real Alternatives claims that requiring the coverage violates the Equal Protection clause of the U.S. Constitution and the federal Administrative Procedures Act (APA).  The group filed an appeal with the U.S. Court of Appeals for the Third Circuit from a federal district court decision denying the claim that the group should not have to provide contraceptive coverage.

The group argues that since it shares the same views on contraceptive coverage as religious groups exempt from the mandate, the exemption cannot be withheld from non-religious groups.  In addition, the group argues that it is irrational and unconstitutional for the government to refuse to extend the same exemption religious groups have to groups opposed to contraceptive coverage for ideological reasons.

Interestingly, the group contends that equal protection rights are denied because secular groups with ideological objections to contraceptive coverage deserve the same protections afforded to religious employers with similar objections.  The APA is violated because the requirement is “irrational and capricious” according to the group.

The group asserts that the basis for the exemption provided to religious organizations is not the religious character of the organizations, rather it is that the women employed by religious organizations most likely do not want the coverage.  That same rationale would apply to employees of Real Alternatives.  When a group and its employees do not want contraceptive coverage to be included, such coverage should not be required.

The group also claims the coverage requirement violates the Religious Freedom Restoration Act because the government has not shown that the mandate advances a compelling governmental interest.  Since the use of certain contraceptives violates the religious beliefs of Real Alternative’s employees, the mandate that the plan include such coverage imposes a substantial burden on the exercise of their religious beliefs.  The government allows an exception for religious employers and it should be able to accommodate the beliefs of the Real Alternative employees and offer the same exception to employees of secular employers with similar objections to the coverage.

The federal government has not yet filed its response to the appeal.  The government is likely to agree with the lower court judge that allowing an exemption in this case could lead down a path to giving exemptions to those with moral objections to any laws.  The judge noted in his opinion that religious organizations do get special protections that are not available to secular organizations.  He also pointed out that the mandate does not require the employees to modify their behavior in a manner contrary to their beliefs.

It is significant that a judge in a district court in D.C. came to a contrary conclusion, ruling that a secular, anti-abortion group can be exempt.  In the event decisions of the Courts of Appeals considering similar challenges are inconsistent or if the Supreme Court decides to take this issue on, we may see another ACA case at the high court.

We will continue to follow these cases as they proceed.

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Photo of David Kaufman David Kaufman

David Kaufman is a Partner at Freeborn & Peters LLP, and he serves as a key member of the Firm’s Healthcare Practice Group.

David has practiced health law for more than 25 years, representing a range of entities responsible for ensuring cost effective and equitable access to healthcare, including health insurers, physicians groups, and regulators.

David has significant experience in federal and state-level regulatory and administrative law gained through private practice as well as in the public sector, serving as General Counsel to the New Mexico State Corporation Commission, Counsel to the New Mexico Superintendent of Insurance, and an Assistant Attorney General for the State of New Mexico.

Admitted to the state bars of New Mexico, New York, California, and Illinois, David’s prior experience in private practice includes work with national law firms in Chicago and Los Angeles, working on transactional healthcare matters and labor and employment issues, as well as Medicare and Medicaid reimbursement.

Before joining Freeborn, David served most recently as General Counsel for Blue Cross and Blue Shield of Illinois, where he was responsible for advising the company on regulatory and business issues in general and on the implementation of the Affordable Care Act.

Photo of Deborah Dorman-Rodriguez Deborah Dorman-Rodriguez

Deborah Dorman-Rodriguez is a Partner at Freeborn & Peters LLP, and is the leader of the Healthcare Practice Group.

Deborah has diverse experience as a healthcare attorney representing insurers, providers, and other healthcare entities. Most recently she served as the Senior Vice President, Chief Legal Officer, and Corporate Secretary at Chicago-based Health Care Service Corporation (HCSC), which operates BlueCross and BlueShield plans in Illinois, Montana, New Mexico, Oklahoma and Texas.

At HCSC Deborah was responsible for providing legal advice and consultation on such issues as federal and state regulatory implementations, litigation, mergers and acquisitions, corporate governance and compliance.  She oversaw HCSC’s legal strategy during a period of unprecedented turbulence in the healthcare industry and helped the company navigate the regulatory and business upheaval associated with the passage of the Affordable Care Act (ACA).

With her experience in serving as CLO of a large organization and in representing healthcare clients over the past 20 years, Deborah understands that no legal decision exists in a vacuum, and that it is vitally important to offer legal advice that is business focused, efficient, practical, and solution-oriented.

Before serving as HCSC’s Chief Legal Officer, Deborah was Vice President and General Counsel of Blue Cross and Blue Shield of New Mexico, an attorney with the law firm of Simons, Cuddy & Friedman in  Santa Fe, New Mexico, where she represented health insurers, physician groups, and other healthcare organizations, Special Counsel to the New Mexico Superintendent of Insurance, and a former New Mexico Assistant Attorney General specializing in health insurance and telecommunications regulatory issues.