On July 8, 2020, in the consolidated cases of Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania et al. and Donald J. Trump, President of the United States, et al. v. Pennsylvania et al., the U.S. Supreme Court ruled that employers can exclude coverage for birth control from their health care plans if they oppose contraception on moral or religious grounds.
The Women’s Health Amendment to the Patient Protection and Affordable Care Act (“ACA”) requires ACA covered employers to provide women no-cost coverage for preventative care as defined by the Preventative Care Guidelines provided by the Health Resources and Services Administration. “Contraceptive methods” are considered preventative care under the Guidelines.
In 2011, the Departments of Health and Human Services, Labor, and Treasury (“Departments”) created a narrow exemption from the requirement to provide contraceptive coverage for houses of worship, their integrated auxiliaries, religious orders, and conventions or associations of churches. In 2013, the Departments provided an accommodation for other religious organizations allowing for contraceptive coverage to be provided without cost-sharing directly to the employer’s participants, independent of the employer’s health plan. To receive an accommodation, the religious organization had to self-certify that it opposed providing coverage for some or all of the contraceptive services on account of religious objections; it is a nonprofit entity; and it held itself out as a religious organization. In 2015, the accommodation was expanded to include any for-profit entity that is not publicly traded and is owned by a small number of individuals who object to providing coverage based upon the owners’ religious beliefs.
In 2018, the Departments issued final rules, which significantly expanded the exemption (“2018 Rules”). The 2018 Rules made the accommodation process voluntary and expanded the exemption to include organizations which objected to the contraceptive mandate based on sincerely held religious beliefs that opposed contraceptive coverage and created a “moral exemption” for nonprofits and for-profit, non-publicly traded companies, with sincerely held moral objections to providing the coverage.
The Commonwealth of Pennsylvania, joined by the State of New Jersey, challenged the 2018 Rules and the U.S. District Court for the Eastern District of Pennsylvania issued a nationwide injunction preventing the Departments from implementing the 2018 Rules. In July 2019, the Third Circuit affirmed the District Court’s decision. This week, the Supreme Court overruling the Third Circuit, held that the Departments had the authority to provide the exemptions to employers with religious and conscientious objections.
Therefore, if you are an employer who has a sincere religious or moral objection to providing contraception coverage to your employees, you will not have to include the coverage in your health plan. The self-certification is no longer required. However, if you would prefer that your employees have the opportunity to receive contraceptive coverage independent of your health plan, then the accommodation procedure remains available and you would follow the self-certification procedures.
If you would like more information on how to invoke the religious or moral exemption or complying with the accommodation procedure, please contact any member of our Labor and Employment Law Practice Group.