Court Says Secular Nonprofit Must Cover Birth Control

Today, in a win for women’s health, a federal appeals court issued an opinion in Real Alternatives v. Burwell that will ensure that employees at a secular, nonprofit organization continue to have access to contraception.

This is one of the many lawsuits that nonprofit organizations have filed to challenge the Affordable Care Act’s requirement that most employers include contraception coverage as part of their employees’ health insurance plans. This case is unique, however, because Real Alternatives is not a religiously affiliated nonprofit. Even though it is entirely secular, the organization claimed that it should be exempt from the contraception coverage requirement just like houses of worship because it believes that contraception and abortion are immoral.

The court disagreed. It held that Real Alternatives is not akin to a religious organization just because it has a certain belief regarding birth control. Quoting American United’s friend-of-the-court brief, the court held that Real Alternative’s anti-choice commitment is “not a religion in any legally or theologically accepted sense.” Thus, the organization is not entitled to the exemption that houses of worship are.

Women should make the decisions about their health care – not their employers.

The court also rejected a challenge from Real Alternative’s employees, who claimed that having to enroll in a health insurance plan that covers contraception violates the federal Religious Freedom Restoration Act (RFRA). This law prohibits the government from substantially burdening a person’s exercise of religion unless it has a compelling reason to do so and its action is, in the court’s language, “narrowly tailored” to its interest. The court found that RFRA wasn’t even triggered because the law doesn’t substantially burden the employees’ religious exercise: signing up for health insurance does not amount to participation in religious exercise. The court explained that “[c]hecking off a box to be eligible for reimbursement of services – services of the employee’s choosing – in no way indicates, let alone suggests, support or advocacy for that service.” In other words, the act of signing up for health insurance is a passive action; the employees still have the choice of whether to use contraception or not.

As our friend-of-the-court brief noted – and the court again quoted – allowing the employees to deny contraception coverage to their dependents would amount to a “religious veto over governmental action that affects them only incidentally and does not coerce them to violate their faith.” That is, the employees’ religious rights were not implicated. And even if they were, RFRA still wouldn’t save them as the law doesn’t allow employers or employees to ignore public health laws and deny women access to healthcare.  

Today’s decision was a good one. Americans United will keep fighting to keep the good ones coming.