In re Eternal Word Television Network, Inc.

818 F.3d 1122

ETERNAL WORD TELEVISION NETWORK, INC., Plaintiff–Appellant,

State of Alabama, Plaintiff,

SECRETARY OF THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. Department of Health and Human Services, Secretary of the U.S. Department of Labor, U.S. Department of Labor, Secretary of the U.S. Department of the Treasury, U.S. Department of the Treasury, Defendants–Appellees.

The Roman Catholic Archdiocese of Atlanta, an association of churches and schools, The Most Reverend Wilton D. Gregory, and his successors, Archbishop of the Roman Catholic Archdiocese of Atlanta, Catholic Charities of the Archdiocese of Atlanta, Inc., a Georgia non-profit corporation, The Roman Catholic Diocese of Savannah, an ecclesiastical territory, The Most Reverend John Hartmayer, and his successors, Bishop of the Roman Catholic Diocese of Savannah, et al., Plaintiffs–Appellees,

Secretary, U.S. Department of Health and Human Services, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury, Secretary, U.S. Department of Labor, Secretary, U.S. Department of Treasury, Defendants–Appellants.

Nos. 14–12696

14–12890

14–13239.

United States Court of Appeals, Eleventh Circuit.

Feb. 18, 2016.

Lori Halstead Windham, Daniel Howard Blomberg, Eric C. Rassbach, Mark Rienzi, Diana Verm, The Becket Fund for Religious Liberty, Stuart Kyle Duncan, Duncan PLLC, Washington, DC, for Plaintiff–Appellant.

Patrick Nemeroff, Bradley Philip Humphreys, Adam C. Jed, Alisa Beth Klein, Joshua Marc Salzman, U.S. Department of Justice, Washington, DC, for Defendants–Appellees.

Before TJOFLAT, JILL PRYOR and ANDERSON, Circuit Judges.

JILL PRYOR, Circuit Judge:

The plaintiffs in these consolidated appeals challenge the regulations implementing what is known as the "contraceptive mandate" of the Affordable Care Act ("ACA")—the requirement that employers provide health insurance coverage for preventive care (including contraception) to women.¹ Specifically, the plaintiffs argue that the regulations' accommodation for nonprofit organizations with a religious objection to providing contraceptive coverage violates the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb, et seq. They claim that the accommodation substantially burdens their religious exercise in violation of RFRA by forcing them to take actions that cause their health plan administrators to provide contraceptive coverage and to maintain a health plan that serves as a conduit for contraceptive coverage. We reject the plaintiffs' claims because we conclude that the regulations do not substantially burden their religious exercise and, alternatively, because (1) the government has compelling interests to justify the accommodation, and (2) the accommodation is the least restrictive means of furthering those interests.

Eternal Word Television Network ("EWTN"), the plaintiff in the first appeal, also raises several First Amendment challenges to the accommodation. Because the accommodation is a neutral, generally applicable law that does not discriminate based on religious denomination, we reject EWTN's challenges under the Establishment and Free Exercise Clauses. We also reject EWTN's challenge under the Free Speech Clause because, as discussed below, any speech restrictions that may flow from the accommodation are justified by a compelling governmental interest and are thus constitutional.

I. BACKGROUND

A. The Affordable Care Act and the Contraceptive Mandate

Enacted in 2010, the ACA requires group health insurance plans to provide a minimum floor of coverage without imposing cost sharing (such as deductibles, co- payments, or co-insurance) on plan participants and beneficiaries. 42 U.S.C. § 300gg–13(a). If an employer fails to provide such coverage in its group employee health plan, it is subject to penalties in the form of a tax of $100 per day per affected person. 26 U.S.C. § 4980D(b)(1). The Women's Health Amendment to the ACA added to the minimum coverage requirements a mandate that group health plans provide women with coverage for preventive care and screenings. 42 U.S.C. § 300gg–13(a)(4). The requirement was intended in part to "get[ ] rid of, or minimiz[e], high copays and high deductibles that are often overwhelming hurdles for women to access screening programs." 155 Cong. Rec. S11987 (Nov. 30, 2009) (statement of Sen. Mikulski). The ACA tasked the Health Resources and Services Administration ("HRSA"), an agency of the Department of Health and Human Services ("HHS"), with promulgating comprehensive guidelines determining which preventive services and screenings would be required. 42 U.S.C. § 300gg–13(a)(4). HHS commissioned the Institute of Medicine ("IOM") to assist with HRSA's development of the guidelines.

The IOM released a full report in 2011 detailing its study of various preventive services and its recommendations for coverage under the mandate. Inst. of Medicine, Clinical Preventive Services for Women: Closing the Gaps (2011) ("IOM Report"). The IOM Report discussed at length the positive public health outcomes associated with reducing unintended pregnancies and giving women more control over birth spacing. The United States has a much higher rate of unintended pregnancies—49 percent of pregnancies in 2001—than other developed countries. Id. at 102. Unintended pregnancies correlate with health problems both for women who experience such pregnancies and for children born as a result of them. Id. at 103. And because women may not realize immediately that they are pregnant, "their entry into prenatal care may be delayed[;] they may not be motivated to discontinue behaviors that present risks for the developing fetus; and they may experience depression, anxiety, or other conditions." Id. Unintended pregnancies also frequently end in abortion. Id. at 102.²

The IOM Report also noted the health consequences of pregnancies occurring too closely together in time. For infants, "[s]hort interpregnancy intervals in particular have been associated with low birth weight, prematurity, and small for gestational age births." Id. at 103. For women, both pregnancy spacing and the ability to avoid pregnancy may significantly affect their health because, among other reasons, some "women with certain chronic medical conditions (e.g., diabetes and obesity ) may need to postpone pregnancy until appropriate weight loss or glycemic control has been achieved." Id. Pregnancy is also contraindicated for some women with serious medical conditions, for example, pulmonary hypertension or Marfan syndrome.³

Id. at 103–04. The IOM Report also found that "greater use of contraception within the population produces lower unintended pregnancy and abortion rates nationally." Id. at 105.

Pursuant to its statutory authority, HRSA released binding guidelines, based on the IOM Report, that require coverage for "[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity." U.S. Dep't of Health & Human Servs., Health Res. & Servs. Admin., Women's Preventive Services Guidelines ("HRSA guidelines"), http://www.hrsa.gov/womensguidelines (last visited Feb. 12, 2016); see also 77 Fed.Reg. 8725, 8725–26 (Feb. 15, 2012) (quoting the language in the HRSA guidelines regarding coverage). Implementing regulations developed by the Department of Labor, the Department of the Treasury, and HHS (collectively, the "Departments") reiterate the contraceptive mandate's requirement that health plans cover all services listed in the HRSA guidelines. 26 C.F.R. § 54.9815–2713(a)(1)(iv) (Treasury Regulation); 29 C.F.R. § 2590.715–2713(a)(1)(iv) (Labor Regulation); 45 C.F.R. § 147.130(a)(1)(iv) (HHS Regulation).⁴

Mindful of religious freedom and the importance of respect for "the unique relationship between a house of worship and its employees in ministerial positions," the Departments promulgated interim regulations that gave HRSA discretion to exempt from the contraceptive mandate certain group health plans established or maintained by religious employers. See 76 Fed.Reg. 46621, 46623 (Aug. 3, 2011). The Departments defined "religious employer" by incorporating the Internal Revenue Service's definition of a church or integrated auxiliary from 26 U.S.C. § 6033(a)(3)(A)(i) and (iii). 45 C.F.R. § 147.130(a)(1)(iv)(B) (2011). The definition also required a religious employer to have a religious purpose and to both serve and employ primarily persons who share the religious tenets of the organization. Id. Exercising the discretion the regulations provided, HRSA amended its guidelines to exempt religious employers from the contraceptive mandate. The guidelines, issued on August 1, 2011, required compliance beginning on August 1, 2012. See id. § 147.130(b)(1).

The Departments finalized the implementing regulations in February 2012. See 77 Fed.Reg. 8725. At the same time, the Departments established a temporary safe harbor from the contraceptive mandate for nonprofit organizations with religious objections to providing contraceptive coverage. See Dep't of Health & Human Servs., Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Health Plans & Group Health Insurance Issuers with Respect to the Requirement to Cover Contraceptive Services Without Cost Sharing (Feb. 10, 2012). The safe harbor remained in effect for the 2012 plan year, ending on August 1, 2013. See id. at 2.

The Departments intended to use the safe harbor period to "expeditiously develop and propose changes to the final regulations implementing" the contraceptive mandate. 77 Fed.Reg. 16501, 16503 (Mar. 21, 2012). The changes to the regulations needed to "meet two goals—accommodating non-exempt, nonprofit religious organizations' religious objections to covering contraceptive services and assuring that participants and beneficiaries covered under such organizations' plans receive contraceptive coverage without cost sharing." Id....