The head of Priests For Life, a group of Catholic clergy that also employs lay people, says his organization will openly defy a federal court order requiring it to comply with the steps it must take to exempt itself from its legal obligation to provide contraceptive coverage in its employee health plan. On Friday, the United States Court of Appeals for the District of Columbia Circuit held that the federal government had taken adequate steps to accommodate groups like Priests For Life that object to birth control on religious grounds. To be clear, no one argues — not the federal government and not the judges who ruled against Priests For Life — that this organization must provide birth control coverage to its employees. Rather, the court order that Priests For Life pledges to defy literally requires them to do nothing but mail off a single-page letter.
As a general rule, federal regulations implementing the Affordable Care Act require employers to include birth control coverage in their employer-provided health plans. The rule exempts employers with religious objections to birth control, however, provided that those employers notify the government and their insurance administrator of their objection. In most cases, the insurer will then contract separately with the objector’s employees to provide them with a separate contraceptive coverage plan.
Priests For Life objects to this scheme because they claim that sending a letter that sets in motion a chain of events that lead to someone receiving contraception violates their religious beliefs. As Father Frank Pavone, the national director of Priests for Life told the Washington Times, his organization will not comply with the law because they believe that doing so would amount to cooperating “in the government’s plan to expand access to birth control and abortion-inducing drugs.” (Although many religious objectors to birth control claim that the forms of contraception at issue in the case are a form of abortion, a broad swath of the medical community disagrees.)
As Friday’s DC Circuit opinion explained, however, religious objectors do not have an absolute right to defy any law they choose not to follow. Rather, they may only invoke federal religious liberty law when they allege that a federal law “substantially burden[s]” their religious exercise. The requirement that they fill out a brief form or send a very short letter, however, hardly qualifies as substantial. As Judge Nina Pillard laid out in her opinion for the court, “[a]ll Plaintiffs must do to opt out is express what they believe and seek what they want via a letter or two page form. That bit of paperwork is more straightforward and minimal than many that are staples of nonprofit organizations’ compliance with law in the modern administrative state.” Indeed, “[t]he accommodation requires as little as it can from the objectors while still serving the government’s compelling interests.”
It is possible, if not entirely certain, that the Supreme Court will reverse the DC Circuit’s decision in Priests For Life. Although there is considerable language in Hobby Lobby suggesting that the accommodation the Obama Administration offered to groups that object to birth control is legally sufficient, the justices appeared to back off that language just a few days after Hobby Lobby was decided. Should Priests For Life’s bid for the extraordinary exemption they currently seek prove unsuccessful, then they are playing with fire by defying the courts. Though the burden required for them to comply with the law is insignificant, the penalties for refusing to comply are substantial.