By: Rachel Easter, CounselPosted on September 22, 2015 Issues: Birth Control Issues Before the Courts

Last week, the 8th Circuit Court dared to be different. It decided to look at what all the other circuit courts are doing and run the other direction. The problem is individuality makes for great fashion choices, not great legal reasoning. The 8th Circuit issued a decision in one of the many cases challenging the accommodation in the birth control coverage benefit. And the result denies women health care protections that have been safeguarded in every other circuit court decision in this line of cases. Now, some religiously-affiliated employers have the ability to take important health care decisions out of their employees’ hands.

The Court’s Decision

In last week’s decision, the 8th Circuit held that two non-profit organizations do not have to comply with the “accommodation” in the birth control coverage benefit. The accommodation is already an opt-out, given to religious non-profits by the Obama Administration. It lets religious non-profits say ‘I object’ and refuse to provide health insurance that includes coverage of birth control. The non-profit’s employees instead get the birth control coverage without cost-sharing directly from the insurance company.

The 8th Circuit case is one of 43 cases brought by non-profit organizations challenging the accommodation. In these cases, the non-profits claim that opting out of the birth control coverage requirement substantially burdens their religious exercise. Thankfully, seven other circuit courts have considered similar challenges and each of them has rejected the non-profits’ claims. As the D.C. Circuit recognized [PDF] in a similar case, all that the accommodation requires is “the written equivalent of raising a hand in response to the government’s query as to which religious organizations want to opt out.” That isn’t a burden. It’s an out.

In the challenges to the accommodation, it is the court’s job to look at the plaintiffs’ challenge, look at the law, and decide whether or not the law actually imposes a substantial burden on their religious exercise. It sounds familiar because making informed decisions is what courts do. The 8th Circuit, however, didn’t. Instead, the court just took the non-profits’ claim at face value, giving us the legal equivalent of the argument “if you say so.” You say there is a substantial burden, so there is one. So now, the non-profits don’t have to comply with the accommodation, and it’s the employees of those non-profits that will pay the price.

Ignoring Women

Unsurprisingly, the 8th Circuit does not consider the very women affected by their decision. Outside of references to other court decisions and regulations, the court refers to ‘women’ only three times in its 25 page decision. That’s the same number of times the court shockingly, not to mention erroneously, refers to certain forms of birth control as “abortion on demand”.

The fact that access to birth control promotes public health and women’s equality does not seem to matter to this court. And, as is so often the case, women’s health suffers as a result.

What this means for the Supreme Court

Thankfully, the 8th Circuit is an outlier. Every other circuit court to consider these challenges has rejected the non-profits’ claims. Now that one circuit court disagrees with the seven other circuits, it increases the likelihood that the Supreme Court will review these cases. That means the 8th Circuit most likely won’t have the final say. So let’s hope seven circuit courts deciding one way and only this outlier decision going the other way is an indicator of things to come.