First Amendment Protections for Health Care Sharing Ministries:

Considerations for Policy Makers

Health Care Sharing Ministries

HCSMs allow faith-centered people to come together as a community to share each other’s medical expenses. Each Health Care Sharing Ministry has a statement of religious beliefs that everyone in the community agrees to uphold. It is critical for the public and policy makers to recognize that HCSMs are not insurance (indeed, 31 states exempt HCSMs from their insurance code or from their state insurance mandate). In fact, HCSMs are defined at the federal level in the Affordable Care Act, which amends the tax code, for the purposes of exempting HCSM members from the ACA’s individual mandate to purchase insurance. 


9 of the 107 Health Care Sharing Ministries have large, open membership.
$2.0 billion of medical expenses shared by Health Care Sharing Ministries in 2021.
$ 1 B
<1 million Americans are active members of a Health Care Sharing Ministry
1 M+
HHS has certified 107 Health Care Sharing Ministries as meeting the federal definition.
1 %
Members of Health Care Sharing Ministries live in all 50 states.
1 %

The Alliance of HCSMs

The Alliance of Health Care Sharing Ministries is a non-profit, non-partisan coordinating body among the majority of large, nationwide, ACA-defined ministries. The mission of the Alliance includes advocating for the issues of critical importance to HCSMs and their members, as well as educating policy makers and the public about HCSMs. 
Legitimate HCSMs have received CMS certification from the U.S. government recognizing them as a federally-defined HCSM. They also meet standards posted here, and they have received accreditation from or are in the process of undergoing accreditation by the Health Care Sharing Accreditation Board.

First Amendment Protections

The First Amendment of the U.S. Constitution protects the religious liberty, free speech and freedom to assemble rights of HCSMs and their members. Below are some details about the various First Amendment protections against excessive government entanglement with religion and against government infringement on religious exercise, free speech and free assembly by religious Americans.

Establishment Clause: No Excessive Entanglement

Government action may not “foster an excessive entanglement with religion,” per Lemon v. Kurtzman, 403 U.S. 602 (1971). An example might be the government subjecting church employee benefit plans to ERISA – the federal law governing larger employer-funded health plans – which would not be permissible because it would subject churches to continuous monitoring (Medina v. Catholic Health Initiatives, 877 F.3d 1213 (10th Cir. 2017)). Another example might be subjecting religious organizations to a requirement to report the percentage of funds they expend on particular activities (Church of Scientology Flag Serv. Org., Inc. v. City of   Clearwater, 2 F.3d 1514 (11th Cir. 1993)).
  • Government can run afoul of the Establishment Clause if it:
    • Requires HCSMs to report to the government for inspection detailed operational and financial information as a condition of operation
    • Requires HCSMs to be accredited through the submission of detailed operational and financial information

Free Exercise Clause: Two Types of Violations

Government may not “prohibit the free exercise” of religion

Government may run afoul of this Free Exercise Clause by either:

  • Burdening religious practice pursuant to a policy that is not neutral and generally applicable
  • Burdening religious practice due to animus towards religious exercise or belief

Free Exercise Clause: Neutral and Generally Applicable

Government may not subject religious organizations to policies that are not “neutral” and “generally applicable” (Kennedy v. Bremerton School District, 142 S. Ct. 2407 (2022); Fulton v. Philadelphia, 141 S. Ct. 1868 (2021)).

  • Example: Government takes religious nature of organization into account “at least in part” in determining policy
  • Example: Government grants “individualized exemptions” from policy or provides government officials with the discretion to grant exemptions

Government can run afoul of the neutral and generally applicable requirement of the Free Exercise Clause if it:

  • Subjects HCSMs to regulation in part based on religious beliefs that affect operations or programs
  • Interprets the insurance code broadly to subject HCSMs to regulation but does not apply the same broad interpretation to other organizations that pay medical bills

Free Exercise Clause: Animus

Government “cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices”

   –Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights   Comm’n, 138 S. Ct. 1719 (2018)

  • Example: Government cannot take action against religious organizations that are motivated by bias against, distrust of, or bigotry regarding religious belief

Government can run afoul of the animus prohibition of the Free Exercise Clause if it: 

  • Targets HCSMs because of skepticism over their religious beliefs and their ministry
  • Chooses to impose requirements only on HCSMs or create a safe harbor only for HCSMs while not regulating similar secular or for-profit organizations

Freedom of Speech

Government may neither forbid nor compel speech absent a compelling interest narrowly served by the regulation

  –Capitol Square Review and Advisory Bd. v. Pinette, 515   U.S. 753 (1995)

  • Example: Government may not condition an organization’s right to speak based on how its organizes its operations or finances
  • Example: Government may not require an organization to speak anything other than uncontroversial or factual information

Government can run afoul of the Free Speech Clause if it:

  • Requires HCSMs to state that they do not comply with the Affordable Care Act
  • Requires HCSMs to state that health insurance is better for most people

Freedom of Association

Government cannot compel the disclosure of individuals or organizations that associate with another organization without a compelling interest –NAACP v. Alabama, 357 U.S. 449 (1958)

  • Example: Requiring charities to disclose donors or affiliates runs afoul of the right to freedom of association

    Am. for Prosperity Found. v. Bonta, 141 S. Ct. 2373 (2021)


Government can run afoul of the freedom of association if it:

  • Requires HCSMs to disclosure of vendors, contractors, or health care providers
  • Requires HCSMs to disclose contractual arrangements, such as payments, to third parties

Statutory Protections: Religious Freedom Restoration Acts (RFRAs)

Dozens of states have enacted RFRAs or RFRA-like protections. In jurisdictions with RFRAs, any burden on the exercise of religion, including if imposed by neutral and generally applicable laws, is subject to “strict scrutiny.” Strict scrutiny means that a court will apply a particularly rigorous standard when judging whether the government-imposed burden may stand: 
  • The government must demonstrate a compelling government interest, such as national security
  • The government must demonstrate that the burden on religious exercise is the least restrictive means to furthering that compelling interest, i.e., there is no other way
  • Strict scrutiny is “strict in theory, fatal in fact” – in other words, it is rare that a government burden on religious exercise survives a court’s strict scrutiny.

If you’d like to go even deeper into the legal and regulatory framework protecting HCSMs, read or download a detailed white paper below.