Can an accommodation be accompanied by a requirement that essentially negates the accommodation and still be seen as sufficient?

To answer this question, we can use a simple example, which arises in the context of employment.

When you ask for a day off – and that day off is granted – you do not expect to be required to come in on your day off in order to tell your boss you won’t be there for the day. That would negate the grant of the day off.

The same is true when religious organizations ask for an accommodation from the employer mandate of the Affordable Care Act and the government offers an accommodation which does not fully meet the requests of these organizations regarding protection of their religious beliefs. Such an “accommodation” does not eliminate the burden on the religious organizations, yet courts have been approving the government’s “accommodation” as sufficient. Continuing the string of judicial denials of religious organizations’ requests, the Tenth Circuit recently denied an appeal from the Little Sisters of the Poor Home for the Aged (Little Sisters) finding that, with the “accommodation” offered by the government, there was no substantial burden on the group’s religious beliefs.

Religious organizations like Little Sisters, Priests for Life, and Notre Dame sincerely believe that life begins at conception so they object to providing abortive contraception as part of their employee health insurance plans. As a result of their sincere belief, these non-profits have asked for an accommodation under the HHS Mandate citing the protections of the First Amendment and the bar on the government substantially burdening the free exercise of religion. The religious non-profits have asked to not be required to participate in any aspect of the provision of abortive contraception.

Requiring these organizations to provide abortive contraception in contravention of their beliefs would be a substantial burden which HHS has recognized and for which HHS has created an accommodation. The current accommodation allows religious non-profits to voice their objection to providing abortive contraception by filling out a form or directly notifying HHS. After HHS receives notice of the objection, the insurance company offers and provides the abortive contraception to the employees.

The question remains, however, whether this “accommodation” is actually sufficient.

Yes, the organizations only have to fill out a form or notify HHS of their religious objection, but the mechanism of notification is not the problem. The problem is that the accommodation doesn’t change the end result. Abortive contraception is still being provided as a result of the fact that the organization provides health care for its employees.

As some dissenting judges in the Priests for Life stated, “Where the government imposes a substantial burden on religious exercise and labels it an accommodation, that burden is surely as distressing to adherents as it would be if imposed without such a designation.”

The answer to whether there is a substantial burden even with the current accommodation is tied to our understanding of an accommodation. When we look at the example in the graphic above, it is fairly clear that the agreement made by the boss does not adequately meet the employee’s request for a day off. Similarly, we should ask whether the current accommodation adequately meets the requests of religious organizations to not have to provide abortive contraception – or, as the Little Sisters have pointed out, to “take actions that directly cause others to provide them, or otherwise appear to participate in the government’s delivery scheme.”

The answer is no, the accommodation does not sufficiently meet the requests of these religious organizations and therefore, places a substantial burden on their religious exercise. The form or notification to HHS is an insufficient accommodation because the opting-out by the religious organizations is the direct cause of the receipt of coverage. The dissenting judges in the Priests for Life pointed out, “the harm plaintiffs complain of . . . is from their inability to conform their own actions and inactions to their religious beliefs without facing massive penalties from the government” (emphasis added by the dissenting judges). This harm does not disappear because their relationship to the provision of the abortive contraception becomes a little more attenuated.

Just as a day off from work which requires you to come into work is not really a day off, an insufficient accommodation is no accommodation at all.