Revisiting Religious Freedom in Dordt v. Burwell

September 25, 2015

On September 17, 2015, the United States Court of Appeals for the 8th Circuit handed down an opinion in favor of Dordt College and Cornerstone University and their objection to the so-called “contraceptive mandate” in the Affordable Care Act (ACA). The process, which began over three years ago, seems to be at some resolution as far as the schools are concerned, but unless you’ve followed the issue closely, it might not be clear exactly what all the fuss was about or why exactly the court found in Dordt and Cornerstone’s favor.

Since this decision is all about the interaction of the ACA and the federal Religious Freedom Restoration Act (RFRA), and since I’ve written about RFRA for iAt on several different occasions, I thought it worthwhile to focus in on the key issues from this particular case in a simple, hopefully plain English fashion. By doing so, we’ll see that this case raises key issues about how courts analyze religious freedom cases, and, given disagreement between different Courts of Appeal on this, it’s likely we will have to wait on the Supreme Court for an ultimate resolution.

RFRA and the ACA Mandate in a Nutshell

RFRA was passed in 1993 as a legislative response to the Supreme Court’s decision in Employment Division v. Smith (which I summarized here), and it requires all government actions to pass a test protecting the free exercise of religion. The test states that only actions which are the least restrictive means of pursuing a compelling governmental interest will be permissible when those means substantially burden the free exercise of religion.

For the purposes of this issue, all parties agree that the government’s interest in providing healthcare (including contraceptives) on a broad, low-cost basis is compelling, the real dispute is over the way to interpret the test requirements for least restrictive means and substantial burdens. I will discuss the specific dispute over these two parts of the test below, but the general process of analysis is a two-step inquiry.  First, the party challenging the government bears the responsibility to provide evidence to prove a substantial burden on their religious belief; then the burden of proof shifts to the government to prove that it used the least restrictive means in pursuing its compelling interest.

The “contraception mandate” provision of the ACA is part of a broader requirement that all employers provide a minimum level of coverage to their employees. This minimum coverage is defined to include free (to the employee) coverage of a variety of medical services that Congress considered to be “preventive care.”1 Among the list of things considered to be preventive in nature by the ACA are a variety of contraceptive products, including several which some Christians believe to be abortificants.2 This means that, in order to avoid tax penalties, employers are required to provide insurance plans which cover the listed contraceptives.

The ACA provides for an exemption for religious employers who object to covering these contraceptives; however, the U.S. Department of Health and Human Services (HHS) decided to interpret “religious employers” in a narrow fashion which only includes organizations which engage in exclusively religious activity. HHS did create an “eligible employer” accommodation for nonprofit institutions like Dordt, but the accommodation does not allow for non-coverage of challenged contraceptives; rather, it directs eligible employers to certify their religious exemption with the Department of Labor, and it directs the company providing insurance to the institution to cover the contraceptive measures at no cost to the employer.3 Dordt, along with nearly 140 other institutions, objected to this accommodation as inadequate, arguing that it still required the employer to trigger abortion coverage by its objection.

Courts Granting the Objection

If you read either the opinion or Dordt’s press release on the topic, you notice Dordt won its case in the 8th Circuit based on that court’s decision in an earlier case called Sharpe Holdings. This earlier decision interpreted the substantial burden test as being met whenever the government “coerces private individuals into violating their beliefs or penalizes them for those beliefs.” Using this analysis, the court emphasized the idea that the court doesn’t really weigh the merit of a religious belief, only whether or not it is sincerely held. By this analysis, then, an institution acting in accordance with its beliefs would not follow the HHS accommodation procedure and would suffer significant federal tax penalties for failing to provide minimum coverage to its employees. The court considered this to be a substantial burden.

Going further, the court concluded that the government also failed the least restrictive means test because of a variety of alternative arrangements, such as the total exemption for religious employers and the less burdensome certification process which was authorized by the Supreme Court on appeals from other groups, such as Wheaton College.

Courts Denying the Objection

While three other circuits agree with the 8th Circuit and its reasoning, there are currently seven who disagree.4 These other courts have followed a different line of interpretation and analysis of, most commonly, the substantial burden test, such as in the 3rd Circuit’s ruling against Geneva College.

In that case, the 3rd Circuit questioned whether, despite Geneva’s belief to the contrary, the requirement that the college certify its objection with HHS actually burdened the free exercise of the college. The court said, “ithout testing religious beliefs, we must nonetheless objectively assess whether compliance with the self-certification procedure does, in fact, trigger, facilitate or make them complicit in the provision of contraceptive coverage.” The court went on to conclude that, because the coverage mandate fell on insurers, and since that mandate came about by the operation of federal law, rather than any action by the college, it was not possible that the certification process placed any substantial burden on the college’s beliefs. Geneva, along with many organizations who’ve lost in the other six circuits, has appealed to the Supreme Court.5

What This All Means

If you’ve been following along this far, you hopefully see that this whole issue turns on what counts as a substantial burden on the free exercise of religion. I’m probably not surprising anyone by saying that I agree with the 8th Circuit’s reasoning. It seems to me that the best way to test for a substantial burden is to look at what the government’s reaction would be to a person/organization acting in accordance with its conscience, which in this case is a significant financial penalty. While the majority of the Courts of Appeals take a different approach, I believe that their approach, while claiming to respect the sincerity of a religious group’s belief, nonetheless tests whether the court agrees with that belief or not, and this puts the court on a dangerous path of beginning to judge the relative merit of religious beliefs.

At the same time, my beliefs on when life begins differ somewhat from many Christians (I tend to favor implantation, rather than fertilization), and questions about what the objectionable contraceptives actually do make me question whether all the fuss is justified. That said, I also think HHS was completely wrong-headed in the way it defined “religious employer” and that the issue of this accommodation should never have come up in the first place.

What are your thoughts on this? Please respond, critique, or vocally disagree in the comments below.

About the Author
  • Donald Roth serves as Associate Professor of Criminal Justice, Co-Director of the Kuyper Honors Program, and Director of the Master of Public Administration Program at Dordt University.

  1. Preventive care traditionally includes things like annual physicals and routine health screenings, which are believed to save significant future healthcare costs through early detection of disease. 

  2. Typically, this means that rather than just interfering with the fertilization of an egg, these drugs would do some harm to an already-fertilized egg, particularly one which has already attached to the wall of a woman’s uterus. Since many Christians believe life begins as fertilization, that would mean drugs like Plan B, Ella, and certain IUDs would be aborting children. It is worth noting that these perceptions as to the effect of these drugs are disputed

  3. This includes a special annual notification to the employees of the objecting company that these contraceptive measures are fully covered. 

  4. There are 13 total courts of appeal in the federal system. See the breakdown of decisions here

  5. If we’re being really persnickety, it might be misleading to call this an appeal. Geneva has filed what’s called a petition for a Writ of Certiorari, which is a court order by which the Supreme Court agrees to hear an appeal. Unlike the Courts of Appeal, the Supreme Court does not have to agree to consider every appeal made to it. 

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    1. I’m glad you approve, Scott. It’s kinda like getting an “A” from a law school prof., and I’m still conditioned to think that’s pretty great.

  1. The possible abortifacient effects of the contraceptives in the minimum coverage are not really disputed by any medical experts: there are no such effects. The idea there is an “abortion pill” being forced on people who oppose abortion is a contrived fear of an extremely remote and only theoretical possibility coming from other sources that have an axe to grind with Obamacare. Given that fact, it seems impossible to make a good faith argument for a sincerely held belief that paying for these contraceptives would be an undue burden on the religious scruples and conscience of Christians, especially Protestants who typically have a long history of accepting contraception. There are even formal statements to that effect in some denominations.

    For such groups, the chances of one of their employees using one of these contraceptives and having a result their religious institution employer might find morally problematic is far more of a remote possibility than a scenario where someone procures an abortion or in vitro fertilization, which are both condemned by large church bodies. If religious employers are really concerned with protecting the practice of virtue in these areas, laws and policies are not the way to do it — it is really more of a family, community, and pastoral problem. The reality is that people of faith who are entirely pro-life do end up in medical situations where developmental defects that now can be screened early reveal that carrying a pregnancy to term will result in a non-viable birth and/or high risks to the mother, not to mention the suffering of a family, community and child who is not going to live long or well. What moral good would be achieved by refusing to insure the costs of medical care that may be used in these cases? If an employer were to make a policy condemning all such procedures, they still would have no way to enforce that on a male employee whose non-employee wife or daughter is covered, and I can’t imagine there are many religious employers who would discipline a pregnant employee who opts to terminate a pregnancy where something like Tay Sachs is involved.

    The real legal problem seems to be, as you say, that the ACA created a question as to what institutions are deemed “religious” under the law. It would make sense from the government’s perspective to avoid making that kind of determination and also to make contraceptive coverage entirely optional at the discretion of an employer. Should a monastic group of male religious celibates have to pay for contraceptive, gynecological, and obstetric coverage? Presumably those types of groups would be clearly identified as “religious,” but why not any established religious group? The question of what to cover/not cover should really be an internal matter for them to work out.

    1. Thanks for your comment, Gerry.

      Many of the challenges to this legislation come from Catholics, who have a formal position against contraception of any kind, so, for them, the question isn’t just the “abortificant” coverage, but the whole contraceptive mandate. That belief is, of course, quite sincerely held. Similarly, many Protestants do agree that life begins at conception, and while they may agree with mechanical means of contraception (such as condoms) or ones which prevent ovulation entirely (such as most birth control pills), they may object to chemically interfering with the fertilization process itself. Now, we may disagree (we, here, meaning you and I versus those objectors), but I don’t think it’s such an incredible or illusory objection to hold as to doubt its sincerity.

      I get the point of your second paragraph, but, of course, the situation you’re talking about goes beyond an insurance decision about covering Plan B, Ella, or an IUD. We don’t detect fetal abnormalities early enough for those to be prescribed in such a case, and even the Catholic church would (to my understanding from speaking with friends in the priesthood) allow doctors to terminate a pregnancy where the child was nonviable (such as where they lacked a brain) and the child’s continued development was actively threatening the mother’s life, because, at that point, the termination would not be choosing to end a life, and it would serve to protect the health of the mother. As to other situations, it may be beyond the scope of what a reasonably brief response could cover here.

      We totally agree on the last paragraph. It’s very difficult to overturn an interpretation of the law made by an agency charged with that law’s implementation, but I really don’t understand why HHS felt the need to interpret “religious employer” as narrowly as it did, other than to try to force contraceptive coverage on groups like the Little Sisters of the Poor and other religious orders and organizations that have appealed the decision, and that strikes me as rather high-handed and distasteful.

      1. A sincere belief in false facts has no standing. There is ample evidence that Plan B (a double dose of estrogen birth control pills), IUDs, and Ella cannot interfere with conception. This was discussed 3 years ago in the National Catholic Reporter:

        It seems the primary Protestant concern is to protect zygotes while ignoring larger questions about the moral limits of interfering with life in a fuller sense that involves fertility as well. Is it acceptable, for example, for a Reformed college to pay for newer chemical contraceptives that render a woman infertile by stopping her menstrual cycle for months or even a year?

        I suspect we are today simply trying to save the appearances of a recent, unofficial doctrine about life beginning at conception. That has been politically expedient to limit abortion, but it deludes us into thinking there are no moral concerns before conception, such as the appropriate limits of technological interventions that intentionally and fully undo a key part of our nature that is central to the cultural mandate.

        1. Thanks for your response.

          While you might argue that a sincere belief in a false fact is of no moral standing, it’s simply not true that this is the case with the question of legal standing. Beyond thornier questions of the correctness of the major beliefs of religious groups, which you might argue venture into opinion, beliefs about even more clearly factual matters regularly give deference to people’s religious convictions. The law’s question is properly “is this belief sincere?” and then to determine whether to accommodate that belief or whether it must be overridden by compelling societal concerns.

          I totally agree that it can be confusing or even frustrating at times, but I’m pretty firmly convinced that respecting people’s conscience, even when that means essentially giving them a right to be wrong (and act on that) is the wiser course for government to follow.

          1. We’re talking about whether these drugs/products can cause the death of a fertilized egg/zygote, right? They cannot. There is no evidence of this, nor is it likely. The idea that it is possible is admitted to be a remote theoretical possibility recently developed by those who have been in opposition to the Affordable Care Act. This remote theoretical possibility was developed with the specific goal of hitching it to the belief that life begins at conception (also of recent vintage) and arguing that their religious liberty has been compromised as a result. And to what end? To oppose mandatory coverage of a few products that have a remote theoretical possibility of killing a zygote. This really does not make sense as the position of a religious institution that covers and does not oppose implantation and fertilization procedures that result in a need for disposal of extra zygotes and embryos.

            You didn’t address that moral-philosophical side of my comment: what do you think the reformed position is, relative to the “be fruitful” part of the cultural mandate, when it’s possible to essentially eliminate male and female fertility, or try to turn it up to 11 when one wants a child, and then to dispose of “extras” so you don’t have quintuplets or embryos on ice indefinitely? Are these questions that should be more discussed? And should they be addressed in the policies of religious institutions for their employees, if those institutions are going to start taking positions against certain contraceptives?

            1. Thanks for your further comments, Gerry.

              It’s actually sort of irrelevant as a legal matter whether or not a group’s beliefs on things are internally consistent, and I would prefer that the rule stay that way. Similarly, I don’t buy the “this was all cooked up as a conspiracy to oppose Obamacare” explanation you seem to be giving for why people oppose Plan B and its cousins. I distinctly remember having a conversation about my views on birth control with a Catholic friend well prior to Obamacare being a twinkle in the president’s eye in which my friend raised the same questions about implantation, so I think what we’re seeing is the persistence of an earlier fear about the drugs from before we had a better idea of how they worked.

              As to your second question. I would agree that this is an issue worth more conversation in Reformed circles. I do not feel qualified to speak to any authoritative “Reformed” position on the matter, but, given that I favor dating life to implantation, rather than fertilization, I have less problems with some of these procedures than most. Overall, I think the discussion should be less about where exactly to draw lines and more about what principles we use to draw them, but when an organization, like Dordt, is forced to make a distinction, then I have respect for their position, whether I personally agree or not.

              To my understanding, Dordt, as the institution I’m assuming you’re referring to here, has always taken a position with regard to abortion, so to the extent those in control of the institution believe these contraceptives to cross the line to that procedure, I’m not sure that it’s all that new. That said, it’s natural to have conversations about what sorts of procedures may or may not be covered, and I happen to know (since I sit on our compensation committee) that we have had conversations about some things like whether we should help to fund adoption processes and, in that context, there was some talk about things like in vitro fertilization. Within that context, we absolutely have talked about whether we should cover certain procedures, but we aren’t being compelled to provide any of those by the government, so I’m not sure it’s morally incumbent upon us to go out and seek to set a position in stone until such a time comes.

              Does that help clarify things?

      2. Donald,

        Wouldn’t the government have an interest in limiting the scope of who qualifies as a “religious employer” just so as to safeguard against people trying to use religious justifications to get out of having to obey the law on a variety of issues? And I can see some merit, if you have to draw a line somewhere, to drawing the line at those institutions for whom being religious is their main raison d’etre (those that have the faith function as their leading function, Dooyeweerd might say). Especially if you assume that most people still operate with a modern notion of ‘religion’ as something that is only part of one’s life, in some way separable from other parts of life. If one preserves this ‘private religion’ v. public action distinction, then why wouldn’t you limit the status of ‘religious employer’ to those whose primary ‘public’ action, if you will, is the carrying out of religious ceremonies?

        Seems to me like they tried to limit who would qualify as a ‘religious employer’ precisely so that they would NOT have to weigh in on what counts as a ‘legitimate’ religious motivation and what doesn’t (a sticky proposition, as you rightly point out). If only churches (and other such religious institutions) count, then we can give them a fairly wide scope of freedom, since they employ a very small percentage of the population. If, however, you open it up, and now every school, organization and corporation that has a Christian heritage and Christian leadership wants to be considered a ‘religious’ employer, then suddenly you open up the possibility of a very large percentage of the population being employed by a ‘religious’ institution (if Hobby Lobby is, why not Walmart? Or Chick-fil-A, or any of a number of other corporations run by Christian people and founded on Christian principles?). In this case, if the law is going to operate at all, you’re going to have to start deciding who is and is not being genuine in claiming their religious beliefs prevent them from obeying X law or Y law (as it seems possible that institutions would start claiming religious exemptions if doing so would save them some money, for example, by having to cover less with their insurance). If everyone is employed by a ‘religious’ employer, then the government will have to get much more involved in trying to suss out ‘legitimate’ religious claims from non-legitimate ones; if very few people are employed by ‘religious’ employers, then one can give them a wider lee-way.

        I don’t know the legal side so maybe this wouldn’t work. But, to me, this seems a plausible reason to interpret ‘religious employer’ somewhat narrowly. What do you think?

        1. Hi Neal,

          These are actually two separate, albeit related, concerns. RFRA is actually triggered by a substantial burden on anyone’s sincere religious belief, which, as we found a couple years ago, can include a closely-held for profit corporation like Hobby Lobby. That decision did not decide that Hobby Lobby was a “religious employer,” only that it could have religious beliefs which were burdened unlawfully by the government.

          The “religious employer” definition was created by HHS (well, an arm of it) via regulation and in reference to a very specific subset of nonprofit employers. I grant that there isn’t a total lack of reason to regulate that group differently (churches do typically have fewer reporting requirements than even other non-profits), but I really think that the abuse you’re mentioning is so unlikely as to be an illegitimate grounds for drawing that narrower distinction. Aside from any bristling at the idea of not being a “religious employer” according to the government, the “eligible employer” lesser accommodation is specifically targeted to override the convictions of non-church religious nonprofits in order to provide contraceptive coverage to employees of those organizations. The only employers eligible for the lesser accommodation are those who are religious nonprofits that object to the coverage requirements.

          The thing that rankles more for me is that this accommodation singles out religious employers who are not “religious employers,” then creates a system where, if they don’t agree to cover contraception, all employees of that organization will receive special, regular notices that these services are covered anyway. That is, even for employees that agree with their employer’s stance, they will have to receive annual reminders that, despite objections, they’re covered for specifically this service. Notice this is annual, not even just when you first sign up. To me, that smacks of something intentionally structured to send a message in contravention of the beliefs of that group of religious employers, and given that this group of employers can choose to only hire coreligionists and can have behavioral policies that would require agreement with the organization’s beliefs on things like contraception, it seems to me to be designed to just emphasize the government’s disagreement, and I find that rather problematic.

          1. Thanks for the legal explanation, Donald. That helps.

            To me, the annual messages you are talking about make sense, insofar as one can assume that people will not always agree with the views of their employer, especially on issues that do not pertain directly to the work being done by said employer. For most work places, I would think contraceptives would fit into this category. Insofar as one doesn’t want an individual’s rights (religious and otherwise) compromised by the views of their employer, it makes sense to set up an alternative channel by which those people can access what they’d like to access in a way that does not infringe upon the employers views. Letting people know this exists seems important, and annual messages may be necessary, since someone may not pay attention to such a message about contraceptives when they first start working for a company (if they aren’t married or involved in a sexual relationship at that time), but may wish to know that information later (after they get married and become sexually active).

            I understand your point about the employer having behavioral policies in place that require agreement about things like contraception, but I’m not sure how many employers actually have that kind of agreement explicitly in place. To me, an annual reminder is a fairly non-invasive way of trying to protect the rights of people working at these places (it does bring up the interesting question of whether one can voluntarily sign away one’s rights—but that’s a bigger issue that’s probably best left for another time ☺)

            Thanks again for the legal explanation in your previous comment. It was very helpful for me in understanding the differences at play in this case and the Hobby Lobby one.

            1. The issue is that the only group of employers who get this “eligible employer” accommodation, rather than the “religious employer” accommodation or none at all, are the subset of nonprofits that are religiously affiliated, this is actually still a very very tiny slice of the overall market. For this group, behavioral policies are much more common than I think you’re assuming. Dordt has one related to things like sex outside of marriage and church attendance, our colleagues in many other colleges have even more restrictive terms, often prohibiting things like drinking alcohol or other activities. For this subset of employers, I think the norm is that people go to work for them because they identify with their employer’s values (at least much more often than it’s just generically another job).

          2. If Christian colleges take non-scientific positions against contraception they claim is abortive, isn’t there legitimacy to accrediting bodies refusing to accredit them and the federal government refusing to provide financial assistance/loans? There’s precedent for both. Just because someone has beliefs doesn’t mean everyone else, or the government, has to support them.

  2. I have received a great question for further follow up and clarification that I thought worth sharing here as well:

    Someone asked me what this means for Dordt now. Do they have to provide any sort of abortion coverage?

    The answer is that, for now at least, Dordt would only have to cover what it feels is in compliance with its religious beliefs until HHS can determine what sort of different accommodation it will make. Essentially, the government’s attempted action has been prevented by a legal restraint called an injunction, and now it’s up to them to figure out what they’ll try next, but in the meantime, Dordt’s in a limbo state where it can sort of do what it thinks best.