By Zoe Tillman, From The National Law Journal

The U.S. Court of Appeals for the Eighth Circuit on Thursday sided with religious nonprofits that challenged the Affordable Care Act’s contraception coverage regulations, splitting with other federal appeals courts that ruled for the Obama administration.

Religious nonprofits that lost similar challenges to the government’s process for accommodating religious objections to the contraception mandate in other circuits have already petitioned the U.S. Supreme Court. A circuit split means the high court is more likely to step in to resolve the conflict.

In a unanimous decision, the three-judge Eighth Circuit panel said that requiring religious nonprofits to submit a form to their insurer or provide notice to the federal government opting out of providing contraception coverage to employees “substantially” burdened their religious exercise because it still resulted in their insurer providing the coverage. The challengers were likely to succeed on their claims that the opt-out procedure violated the Religious Freedom Restoration Act, the court said.

“If one equates the self-certification process with, say, that of obtaining a parade permit, then indeed the burden might well be considered light,” Judge Roger Wollman wrote for the panel. “But if one sincerely believes that completing Form 700 or HHS Notice will result in conscience-violating consequences, what some might consider an otherwise neutral act is a burden too heavy to bear.”

The government demonstrated a “compelling interest” in providing contraceptive care to women, the court said. But the panel said the government failed to show that the opt-out process was the least restrictive way of pursuing that interest given the burden it placed on religious organizations.

The challengers—CNS International Ministries, Inc. and Heartland Christian College—presented alternatives to the opt-out process, such as having the government provide contraceptive care or offer subsidies to women who want such services. They also suggested employees could buy insurance for contraceptive care through the government-run exchanges. Based on the “limited record” before the court, Wollman wrote, the government hadn’t shown yet that these options were not viable.

Timothy Belz of Ottsen, Leggat & Belz in St. Louis argued for the challengers. He said that he and his clients were “happy as can be” and expected the Supreme Court to take up the issue.

As other circuits released opinions this year upholding the contraceptive care mandate and the opt-out process as lawful, Belz said he alerted the Eighth Circuit any time there were dissenting judges in those cases.

“Our only approach was, hey, we have to let our panel know that there are a lot of other federal appeals court judges out there who are seeing things our way, even if they’re not in the majority,” Belz said.

A U.S. Department of Justice spokeswoman did not immediately return a request for comment. Judges Steven Colloton and Duane Benton also heard the case.

The Eighth Circuit’s ruling in Sharpe Holdings v. HHS is posted at link below.

IMAGE:

Demonstrators outside the U.S. Supreme Court on Tuesday, March 25, 2014, during arguments in Burwell v. Hobby Lobby Stores, Inc. Photo: Diego M. Radzinschi/NLJ

For more on this story go to: http://www.nationallawjournal.com/id=1202737465315/Contraceptive-Mandate-Challengers-Win-in-Eighth-Circuit-Creating-Split#ixzz3m6IPq8bx