Affordable Care Act Runs Into Religious Freedom Issues in Court

by Franczek Radelet P.C.

[author: Gwen Morales and Ellen Babbitt]

Although the Supreme Court, in a landmark decision earlier this summer, affirmed the constitutionality of the Patient Protection and Affordable Care Act (ACA), the challenges to and controversies surrounding that Act are far from over. One implementing guideline in particular has been the target of considerable opposition from religious institutions: the requirement that all non-grandfathered health plans and insurers provide coverage for contraceptives and other preventative care for women. Although certain religious groups, primarily churches, are exempt from this requirement, the guideline does not exempt other religious employers such as schools, hospitals, and universities. The Department of Health and Human Services (HHS) has provided certain of these non-exempt religious employers with a temporary enforcement “safe harbor,” under which these selected employers are allowed an extra year to comply with the contraceptive coverage requirement (or, perhaps, work out an accommodation). Accordingly, because many non-exempt religious employers are not presently required to begin providing contraceptive services, the legal challenges they have raised to the contraceptive care mandate have yet to gain real traction in the courts.

A recent decision from the U.S. District Court for the District of Colorado, however, provides some indication that, if and when the mandate is enforced against non-exempt religious employers, those employers may be able to successfully oppose the mandate on religious freedom or First Amendment grounds. The plaintiffs in the case at issue, Newland et al. v. Sebelius et al., were Hercules Industries, a Colorado manufacturer and distributer of HVAC products, and William, Paul, James, and Andrew Newland and Christine Ketterhagen (the Newlands), the family group that owns Hercules and comprises its Board of Directors. Although Hercules is a private, for-profit, secular employer, the Newlands are devout Catholics who, as they stated to the court, “seek to run Hercules in a manner that reflects their sincerely held religious beliefs.”

Hercules maintains a self-insured group plan which, pursuant to the Newlands’ religious beliefs, does not cover contraception or other reproductive health services. Faced with the prospect of either having to begin providing such coverage in the fall of 2012 or pay significant fines, the Newlands filed suit, arguing that the contraceptive coverage requirement violated the Religious Freedom Restoration Act (RFRA) and their First Amendment right to the free exercise of religion. The Newlands’ action sought an injunction against their being forced to comply with the law. Although the District Court left some of the trickier issues presented by this case for another day, it ultimately found the plaintiffs’ argument sufficiently compelling to grant their request for a preliminary injunction.

In considering whether to grant the preliminary injunction, the court considered (1) whether plaintiffs were likely to succeed on the merits of their claim, (2) whether they faced irreparable and imminent harm which (3) outweighed any harm to the defendants, and (4) whether the injunction would adversely affect the public interest. Beginning with factor (2), the court found that, even though the required coverage would not begin until November 1, 2012 (the start date of Hercules’ new plan year), the extensive planning involved in the Newlands’ amendment of their plan rendered sufficiently “imminent” the harm being faced by plaintiffs. Moving to factor (3), the court summarily concluded that the potential harm to HHS of being prevented from enforcing its regulations “pale[d] in comparison” to a possible infringement upon Plaintiffs’ constitutional rights.

With regard to factor (4), HHS had argued that granting the injunction would adversely affect the public interest because it would undermine the ability of HHS to effectuate Congress’ goals of (a) improving the health of women and children and (b) equalizing the coverage of preventative services for women and men. The court disagreed, noting that HHS itself had undermined its own asserted interest by providing exemptions for certain religious organizations and also for employers with grandfathered health plans; the court also concluded that HHS’s interest was wholly outweighed by the public interest in the free exercise of religion. Finally, with regard to factor (1), the court concluded that plaintiffs had demonstrated a likelihood of success on their claim that the contraceptive coverage requirement unlawfully burdened their exercise of religion in violation of the RFRA, and thus a preliminary injunction was appropriate. The court did not reach the potential merits of plaintiffs’ First Amendment claim.

Under the RFRA, the government is prohibited from enforcing a law that “substantially burden[s] a person’s exercise of religion,” unless that law is “in furtherance of a compelling government interest” and is the “least restrictive means” of furthering that interest. The unusual twist in the present case is that it is Hercules – a secular corporation – against which the contraceptive and preventative care mandate would be enforced. Noting that the question of whether such an entity could “exercise religion” for purposes of the RFRA was a new and weighty one “merit[ing] more deliberate investigation,” the court declined to rule definitively upon the issue at this preliminary stage but, rather, set this issue aside for later proceedings. That the court ultimately granted plaintiffs their requested injunction, however, demonstrates that it found some merit to the argument. Moreover, in jumping ahead to the remainder of the RFRA analysis, the court noted that the “massive” exemptions to the contraceptive mandate that HHS had provided effectively served to undermine any compelling interest that HHS might have in applying that mandate to plaintiffs. And, furthermore, even if HHS did have a compelling interest in applying the mandate to plaintiffs, it failed in the court’s view to demonstrate that there were no feasible less-restrictive alternatives. For instance, the court noted, plaintiffs had proposed one alternative—government provision of free birth control—that HHS had failed to argue was logistically or administratively impracticable. Citing all of these concerns, the court therefore entered a preliminary injunction preventing enforcement of the mandate against plaintiffs and preserving the status quo pending a full resolution on the merits.

It is important to stress that this decision is only preliminary, and it is unknown what the final outcome may be. The decision is also narrow and, as the court took pains to emphasize, applies only to the particular case at hand, not to any other party’s argument about free exercise of religion. And, of course, it is certainly possible that this controversy may be mooted by additional executive or regulatory action in the year before the requirement to provide contraceptive coverage becomes enforceable as to this category of employers. Nonetheless, this case remains notable, even given its narrow application, because it suggests that courts may well be receptive to challenges to ACA on religious grounds, when and if such challenges become ripe.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

Written by:

Franczek Radelet P.C.

Franczek Radelet P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.