February 2013 Volume 9 Number 6

Matters of Conscience (Recent Religious Challenges to the Patient Protection and Affordable Care Act)

By Bruce Howell, Schwabe, Williamson & Wyatt, Portland, OR

AuthorJust when it seemed as though the challenges to the Patient Protection and Affordable Care Act (“PPACA”) were over, especially those against the Individual Mandate, the centerpiece of the legislation, a renewal of objections to this law have arisen. This set of constitutional challenges involves First Amendment challenges, specifically under the First Amendment’s freedom of religion clause,1 and the Religious Freedom Restoration Act of 1993, as explained below. (“RFRA”)2

PPACA requires employers and individuals to maintain health insurance for “essential health benefits” which include preventative contraceptive services for women.3 There are exceptions in the ACA for non-profit religious organizations and houses of worship.4 There is no specific exemption for a for-profit entity.

In August, 2011, the government promulgated regulations requiring that new private healthcare plans would be required to provide FDA-approved methods of contraception and counseling for their members.5 Then in January 2012, the government rejected a broad position regarding contraception by the Roman Catholic Church and, instead, issued a potential compromise in February of that year. That compromise did not require religiously affiliated organizations to pay for contraception but required them to offer such services to their members.

According to reports, there have been over 40 cases filed objecting to these preventative care requirements.6 The cases divide into two categories. The first category involves “for profit” entities that are not exempt from the Individual Mandate under PPACA but that have strong religious affiliations.7 These entities argue that since women’s reproductive rights are against their strongly held faith, they should not be required to provide coverage for those services since to do so would violate their rights under the First Amendment and the RFRA.8

The second category of plaintiffs is that of nonprofit organizations that, even though there is an explicit exception for such non-profits in PPACA, believe that the regulations proposed by the government are not strong enough to protect their religious interests.9

The language of the First Amendment, of course, states that the freedom to practice one’s religion shall be guaranteed.10 However, over the years, the courts have upheld restrictions on the practice of religion, especially when the health of a person is involved.11

The RFRA was passed in 1993 to further express the concept that the government should be restricted in its control of religious practices for the common good, and underscores the rights of the individual to practice his or her own faith.12 The central concept of the RFRA is to limit the governmental interference to a minimum.13

The recent activity in the latter area is a case decided in December, 2012, which found the DC Circuit of Appeals abating the case so that the government can promulgate its regulations concerning this matter.14 The Court has ordered the government to report every sixty days on the progress of these regulations.15

On February 1, 2013, the Obama Administration issued new proposed regulations in an attempt to palliate critics of PPACA who maintain that the language of the Individual Mandate violates the religious freedom of those who oppose women’s reproductive rights, such as contraception.16

The recent proposed regulations are a response to, in part, to this reporting schedule.

There are 14 cases filed by for profit entities with the various Federal courts around the country and, so far, the plaintiffs have been victorious in nine of them. Thus, the plaintiffs in those cases could be free of the penalty which must be paid starting in 2014. While the regulations to be promulgated may help to solve some of the issues, the United States Supreme Court in December remanded a case to the Fourth Circuit for further consideration after denying certiorari.17

The position of the government in these cases is that there is sufficient distance between the purchase of insurance and the allegedly immoral act; i.e. the providing of health insurance for contraceptives and abortion causing drugs and the use of them by the end user. This argument was specifically rejected by the Seventh Circuit.18 In that case, the appellate court issued a preliminary injunction enjoining the imposition of the Individual Mandate because of the close connection between providing the objectionable insurance and the plaintiffs’ staunchly held beliefs.19 Opposite rulings, however, have been issued by other courts, allowing the government to impose the requirements of the Individual Mandate on those plaintiffs.

The issue in the matters of the for-profit entities that object to the Individual Mandate’s requirements is cloudy. For example, in one case the plaintiffs argued that to pay the penalty for their employees (around 400) would bankrupt the company; the cost that they attributed to their faith. This raises two questions – first, should the matter of faith allow a person to avoid paying under the legislation he or she objects to and, secondly, what are the limits on the use of faith to avoid the Individual Mandate? For example, if a person objects to healthcare entirely and will not provide any insurance on any level due to religious beliefs, will such be a convenient excuse for narrowing the Individual Mandate?

The first issue raises the constant tension that exists in the law as to the rights of the individual to practice religion versus the right of the state to pass legislation supposedly benefitting society. The second issue raises the question of how far one’s belief need to be honored when healthcare is involved.

Thorny issues, and they are likely to result in a decision by the Supreme Court in the near future.

1U.S. Const. amend. I.
242 U.S.C. § 2000 (bb), et seq. The language of the First Amendment, of course, states that the freedom to practice one’s religion shall be guaranteed. Over the years, however, the courts have upheld restrictions on the practice of religion, especially when the health of a person is involved.



The New York Times, Vol. CLXII, No. 56, 035 (February 2, 2013).




This article will not list all the cases which are pending in Federal Court in 11 states. Instead, representative cases will be examined, and a full analysis of the cases will be the subject of a later article.


See, e.g., Legatus, et al. v. Kathleen Sebelius, et al., USDC, E.D. Mich. (No. 12-12061)



9See, e.g., Wheaton College v. Sebelius, U.S. Ct. App. D.C. Cir. (No. 12-5273)

See note 1 supra.

11See, e.g., Application of the President of Georgetown College, Inc., 331 F.2d 1000 (D.C. Cir. 1964). In this case, Jehovah’s Witnesses refused to allow blood transfusions to be given in a life-threatening situation. A writ of injunction against such refusal was issued by the District of Columbia Court of Appeals.

See RFRA, supra.



14See Wheaton, supra.



78 Fed. Reg. No. 22 (February 1, 2013). The Individual Mandate is the requirement in PPACA that individuals obtain health insurance or that corporations provide such insurance.


Liberty University v. Geitner, U.S.S.Ct. (No. 11-438, Nov. 26, 2012)


Grote, et al. v. Sebelius, et al., U.S. Ct. App., 7 th Cir. (2013)


Hobby Lobby, et al. v. Sebelius, et al., U.S.D.C. (WD, Okla.)(No. C18-12-1000HE)

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