Plaintiff Entitled To Accommodation From Affordable Care Act's Hyde Amendment Arrangement

In Howe v. Burwell, (D VT, July 20, 2015), a Vermont federal district court dealt with yet another permutation of religious objections to provisions in the Affordable Care Act.  Under the ACA, health insurers which offer policies through state exchanges may, but are not required to, cover abortion services.  If they do, in order to comply with the Hyde amendment that bars use of federal funds to pay for abortions, the insurance company is required to segregate at least $1 per month of the premium paid by each individual and use those funds to pay for abortion services. All policies offered through the Vermont exchange have this arrangement for abortion services which plaintiff claims, among other things, violates his free exercise rights under RFRA. He objects on religious grounds to funds he is required to pay in as a premium being used to pay for others' abortions.

The court held that most of plaintiff's RFRA claims against the federal government arise out of decisions third parties, such as private insurance companies, have made. However the federal government could accommodate plaintiff by refraining from enforcement actions against any insurance company that agrees not to comply with the segregation requirement for the policy offered to plaintiff. The court went on:

The Federal Defendants have already agreed not to enforce the segregation requirement against any third party health insurer willing to offer Plaintiff health insurance coverage. Notwithstanding that agreement, because the Federal Defendants have not offered this as an accommodation under RFRA on a permanent basis, Plaintiff retains standing to request it in the form of declaratory relief. ...

Plaintiffs request for a declaratory judgment that he is entitled to non-enforcement of the segregation requirement (and the separate payment) is therefore sufficiently plausible to avoid dismissal at this stage in the proceedings.