Annals of Health Law - Vol 23 Issue 2

pending review, which the Court granted. 81 That same day, the Hobby Lobby Court had described the accommodation as “a system that seeks to respect the religious liberty of religious nonprofit entities while ensuring that the entities have precisely the same access to all [FDA-approved] methods of birth control.” 82 Yet, the Court enjoined the requirement that Wheaton College complete the self-certification form, holding that if Wheaton College informed HHS in writing that it qualified for the accommodation, HHS could not apply the contraceptive coverage provision to the college. 83

As the merits of these and other nonprofits’ appeals are being decided by the appellate court, the compelling government interest prong of the RFRA test will almost certainly be pivotal. As noted, if a nonprofit plaintiff establishes a substantial burden, the burden shifts to the government to show that it has a “compelling government interest” that justifies that burden. As in the for-profit cases, the parties tend not to dispute that the government has compelling interests in promoting public health, women’s autonomy, and gender equality. Instead, the dispute centers on whether applying the contraceptive coverage mandate to the particular claimant furthers those compelling interests. 84 Hobby Lobby did not decide this issue, as explained above, but the majority appears skeptical in suggesting that the existing exemptions and accommodations to the contraceptive coverage requirement could be understood to undermine any purported compelling interests. 85 In his concurrence, however, Justice Kennedy writes that “[ i]t is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.” 86

81. Wheaton Coll., 2014 WL 3020426, at 1-2.

82. Id. at 3 (Sotomayor J., dissenting).

83. Id. at 2; see also Little Sisters of the Poor Home for the Aged v. Sebelius, 134 S. Ct. 1022 (2014) (granting injunction pending appeal).

84. See, e.g., Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430-31 (2006) (“RFRA requires the Government to demonstrate that the compelling interest test is satisfied through the application of the challenged law “to the person”—the particular claimant whose sincere exercise of religion is being substantially burdened.”).

85. Burwell v. Hobby Lobby Stores, Inc., Nos. 13–354, 13–356, 2014 WL 2921709, at * 23 (U.S. June 30, 2014) (“[I]t is arguable that there are features of the ACA that support [the objecting parties’] view.”); but see Gilardi v. U.S. Dep’t. of Health & Human Servs., 733 F.3d 1208, 1240 ( D. C Cir. 2013) (Edwards, J., concurring in part, dissenting in part) (“[T]he exemptions are not as broad as the Gilardis make them out to be.”), vacated in part 2014 WL 2931834, at 1 (U.S. July 1, 2014); Korte v. Sebelius, 735 F.3d 654, 728 (7th Cir. 2013) (Rovner,, J., dissenting) (“The exemptions already provided for in the ACA neither undermine the compelling nature of the government’s interests in broadening American’ access to healthcare and ensuring that women have comprehensive healthcare nor do they make religious-based exemptions any more reasonable or feasible.”), cert. denied sub nom. Burwell v. Korte, No. 13-937, 2014 WL 2931855 (U.S. July 1, 2014).