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Crazy 8th Says Contraception Opt Out Is Unconstitutional

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By Casey C. Sullivan, Esq. on September 21, 2015 6:57 AM

Has the Eighth Circuit lost it? Or is it just the one voice of reason in our appellate courts? Why do we ask?

The Eighth Circuit has ruled that Obamacare's contraception opt out -- the part of the Affordable Care Act that allows religious nonprofits to avoid directly providing contraception to their employees -- violates the Religious Freedom Restoration Act and burdens employers' exercise of religion. In its two rulings issued Thursday, the Eighth stands alone. Similar arguments have been rejected by seven other circuit courts.

Supreme Court here we come!

Someone Finally Pulls the Trigger Theory

The claims made in the Eighth Circuit (by religious schools in one case, a ministry and school in the other) paralleled those rejected by all other circuit courts. Under Obamacare, employers must provide health insurance that covers contraception -- except if they're closely held corporations or religious nonprofits. Those nonprofits may opt out of providing contraception coverage. They simply need to send a one page form to its third party health care plan administrator or the Department of Health and Human Services. Once the form is sent, contraception coverage is paid for by the plan administrator.

Under the "trigger theory" proposed by the plaintiffs, having to send that form triggers their involvement in contraception. That involvement, religious employers argue, burdens their free practice of religion by connecting them to the provisioning of services repugnant to their beliefs.

Who Decides the Burden?

Whether the trigger theory stands has depended on who determines a religious burden. Is an individual's belief that an action burden's them enough or must a court determine whether religious practice is actually affected? The Second, Third, Fifth, Sixth, Seventh, Tenth and D.C. Circuits have all found that the opt out process places no substantial burden on religious practice.

In doing so, many of those courts have relied on Bowen v. Roy. In that case, Stephen Roy, a father practicing a Native American religion, claimed that the government's use of a Social Security Number for his daughter burdened his religious practice. The government must come up with some other system to accommodate him, he argued. The Supreme Court disagreed, saying that religious beliefs cannot "radically restrict the operating latitude of the legislature."

In the two cases released Thursday, Sharpe Holdings v. HHS and Dordt College v. Burwell, the Eighth Circuit went against those prevailing views. It's not a question of whether religious employers are right about the ACA opt out procedures, the Eighth held, "but whether they have a sincere religious belief that their participation in the accommodation process makes them morally and spiritually complicit in providing abortifacient coverage. Their affirmative answer to that question is not for us to dispute."

Send that logic down a slippery slope and you could end up with pacifists avoiding taxation that supports military programs or Stephen Roy prohibiting the government from using Social Security numbers.

The Eighth's ruling makes it likely that the Supreme Court will take up the issue soon. Several religious groups, having lost in other circuits, have already petitioned for cert. They now have a circuit split to help get them get it.

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