The Affordable Care Act’s contraception mandate is back in the news. Last Friday, the Sixth Circuit made headlines when it joined six other Circuits in upholding the accommodation scheme for religious non-profits that object to the contraception mandate.  See August 21, 2015 Opinion, Michigan Catholic Conference, et al. v. Burwell, et al. (6th Cir. Case Nos. 13-2723/6640) (PDF).  The contraception mandate is the requirement under the federal health care statute that requires employers to cover contraceptives in their employee health care plans.  In its August 21 opinion, the Sixth Circuit re-issued and re-affirmed its earlier decision from June 2014 in which the Court, in a 3-0 opinion written by Judge Moore, affirmed decisions by Michigan and Tennessee district courts denying preliminary injunctions to the plaintiffs on all their claims against the contraception mandate.  See June 11, 2014 Opinion, Michigan Catholic Conference, et al. v. Burwell, et al. (6th Cir. Case Nos. 13-2723/6640) (PDF).

Despite their June 2014 loss, the plaintiffs’ challenge was back before the Sixth Circuit because the plaintiffs petitioned for a writ of certiorari that focused on whether the accommodation provision violated their rights under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb, et seq.  On April 27, 2015, the U.S. Supreme Court granted the plaintiffs’ petition, vacated the Sixth Circuit’s June 2014 judgment, and remanded the case back to the Sixth Circuit for further consideration in light of the High Court’s high-profile decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), which held that family-owned for-profit companies with sincerely held religious beliefs are not required to comply with the contraception mandate.

In Friday’s 3-0 opinion, once again penned by Judge Moore, the Sixth Circuit panel considered the impact of Hobby Lobby but adhered to its original June 2014 disposition of the case. The panel explained that while the Supreme Court in Hobby Lobby had held that the federal government cannot force closely held companies with sincere religious objections to provide contraception coverage to their employees, “that issue is fundamentally different from the issue at the heart of this case—whether an entity’s decision not to provide such coverage by exercising an accommodation [under federal law] is, by itself, a violation of that entity’s religious beliefs.” The panel explained that in its original June 2014 opinion, it upheld the accommodation against a RFRA challenge, and “[n]othing in Hobby Lobby changes this analysis.”

To bolster its decision, the Sixth Circuit panel highlighted how six other circuits have addressed whether the accommodation passes muster under the RFRA, and all six have upheld the accommodation. All six, moreover, have held that Hobby Lobby does not compel a contrary conclusion.

Although it is likely that plaintiffs once again will petition for a writ of certiorari before the Supreme Court, they have several substantial hurdles to clear.  For one thing, there is no Circuit split.  The Sixth Circuit’s August 21 decision now means there are seven Circuits all holding that accommodation passes muster under RFRA.  In addition, as the Sixth Circuit panel noted in its opinion on Friday, the Supreme Court in Hobby Lobby “discussed the accommodation favorably” (though not definitively), and it never suggested that it violated RFRA.

We’ll of course continue to follow any appeal to the Supreme Court.