This blog post was authored by Jessica Frier

The Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc., while limited in scope to closely-held private companies, is of interest to religious non-profits as well as for-profit employers.

The ACA requires health insurance providers to cover preventive health services, including FDA-approved contraceptives, without charging co-pays, deductibles, or co-insurance, often referred to as the “contraceptive mandate.”

A key difference between closely-held corporations like Hobby Lobby and religious non-profits is that faith-based non-profit employers are eligible for an accommodation that allows them to shift the burden of complying with the contraceptive mandate to a third-party administrator or insurer, an accommodation not available to closely-held for-profit employers.

To invoke the accommodation and avoid civil penalties, a religious non-profit must file a self-certification form stating (1) that it “opposes providing coverage for some or all of any contraceptive services required to be covered under [the regulation] on account of religious objections, (2) [that it] is organized and operates as a nonprofit entity, [and] (3) [that it] holds itself out as a religious organization.”  (45 C.F.R. section 147.131(b).)

A series of cases challenging the accommodation and exemplified by Little Sisters of the Poor v. Sebelius, are working their way through the circuit courts and headed for likely Supreme Court review.  The plaintiffs, religious non-profit employers, contend that signing a self-certification form to qualify for the “eligible organizations” accommodation, and then delivering those forms to an insurer or third-party administrator unduly burdens their free exercise of religion.

A few days after issuing the Hobby Lobby decision, the Supreme Court issued an injunction ruling that Wheaton College of Illinois, a religiously-affiliated non-profit institution, need not use the form (EBSA Form 700) prescribed by the government to invoke the accommodation, and need not send copies of the form to health insurance issuers or third-party administrators, until a final decision is made on the college’s appeal of the contraceptive mandate.

The order can be found at Wheaton Coll. v. Burwell.  LCW will continue to monitor and report on this developing area of the law.