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Justice Sotomayor Delays Contraceptive Mandate for Religious Groups; Courts Act in Other Cases

Justice Sotomayor Delays Contraceptive Mandate for Religious Groups; Courts Act in Other Cases

January 2, 2014 — Supreme Court Justice Sonia Sotomayor on Tuesday granted a temporary injunction against the federal contraceptive coverage rules to an order of nuns and more than 200 other Catholic not-for-profits that use the same health insurance provider, the Washington Post reports (Somashekhar et al., Washington Post, 1/1). The ruling applies only to the Little Sisters of the Poor Home for the Aged in Colorado and other plaintiffs, but it is particularly significant because the high court has previously only considered challenges to the mandate filed by for-profit companies (Liptak, New York Times, 1/1).

The contraceptive coverage rules, which are being implemented under the Affordable Care Act (PL 111-148), require most employers to offer coverage to their workers. Houses of worship are exempt from the requirement, and religiously affiliated not-for-profits are eligible for an accommodation that ensures they do not have to pay for or directly provide the coverage for their employees. Private companies are not eligible for an exemption or accommodation (Women's Health Policy Report, 9/25).

The injunction will remain in place at least through Friday, when the federal government is required to respond to the order (Landers, Wall Street Journal, 1/1). On Monday, a lower court had denied the plaintiffs' request for an emergency stay, prompting them to appeal to the Supreme Court (Haberkorn, Politico, 1/1).

Case Details

In September, the Becket Fund for Religious Liberty filed a class action suit against the rules on behalf of several organizations providing care for the elderly in Colorado, Maryland and elsewhere. The suit argued that under the accommodation for religiously affiliated employers, the not-for-profits "would be required to actively facilitate and promote the distribution of these [contraception] services in ways that are forbidden by their religion" (Wall Street Journal, 1/1).

The Little Sisters estimated it would face about $2.5 million in annual fines starting Jan. 1, adding that it "cares for 69 elderly poor people and operates with an annual budget of approximately $6 million" (New York Times, 1/1).

In response, the federal government cited an insurance law known as ERISA, under which the health plan administrator for the Little Sisters is classified as a church organization. The government argued in a brief that it has "no statutory authority" to intervene or penalize the administrator, which has no "legal compulsion ... to provide contraceptive coverage where an eligible organization with a self-insured church plan invokes the accommodation."

The Little Sisters argued that it would still be required to sign the authorization form or face penalties. Attorneys for the organization wrote in their appeal, "The threat to applicants' religious freedom derives from the sheer enormity of the government's pressure on them to forego their religious exercise of not providing coverage for the drugs and devices at issue and not authorizing or helping others to do so" (Allen, Politico, 1/1).

Sotomayor gave the federal government until Friday morning to respond, at which point either she or the full Supreme Court could extend or dissolve the injunction. The Supreme Court also could decide to hear the case, according to the New York Times (New York Times, 1/1).

Federal Appeals Court Grants Injunction to Washington Archbishop, Catholic University

In related news, a federal appeals court on Wednesday granted the Roman Catholic Archbishop of Washington and the Catholic University of America, among other plaintiffs, a temporary injunction against the contraceptive coverage rules while they appeal a loss in a lower court, Bloomberg Businessweek reports (Pettersson/Stohr, Bloomberg Businessweek, 1/1).

In a dissenting opinion, one of the three judges considering the case, U.S. Circuit Judge David Tatel, said that the accommodation aided rather than hindered the plaintiffs' religious freedom. "Simply put, far from imposing a 'substantial burden' on appellants' religious freedom, the challenged provision allows appellants to avoid having to do something that would substantially burden their religious freedom," he wrote (New York Times, 1/1).

Injunction Granted to Southern Baptist Groups

Separately, a federal judge on Dec. 20 granted a preliminary injunction against the federal contraceptive coverage rules to an organization that provides health benefits to employees of about 200 ministries associated with the Southern Baptist Convention, the AP/Washington Post reports (AP/Washington Post, 12/20/13).

In October, the Becket Fund for Religious Liberty filed a class-action lawsuit against the contraceptive coverage rules on behalf of GuideStone Financial Services, an agency of SBC. Reaching Souls International in Oklahoma and Truett-McConnell College in Georgia -- two of the organizations that rely on GuideStone for health benefits -- also are plaintiffs in the suit.

The suit argued that the mandate's accommodation would still require GuideStone to facilitate and possibly pay for forms of contraception that go against Southern Baptist religious beliefs (Women's Health Policy Report, 10/15/13). Specifically, the suit objected to providing four contraceptives, including various forms of emergency contraception, which the plaintiffs believe act as abortifacients.

Judge Draws Comparison to Hobby Lobby Case

In a 16-page decision on Dec. 20, U.S. District Judge Timothy DeGiusti said that the ministries have a right to challenge the mandate and that an injunction is necessary to prevent the government from enforcing the rules. DeGiusti drew several comparisons with a similar lawsuit filed by the arts-and-crafts retail chain Hobby Lobby, writing that the ministries that object to the mandate also "face substantial financial penalties, and their refusal will cause a substantial financial loss to GuideStone if it excludes nonexempt, noncompliant organizations from the GuideStone plan."

"Here, as in Hobby Lobby, the court finds that plaintiffs have made a threshold showing of a substantial burden, and, thus, a likelihood of success," DeGiusti wrote. According to the AP/Post, the plaintiffs faced a Jan. 1 deadline to either provide the drugs or face thousands of dollars in penalties per day (AP/Washington Post, 12/20/13).

Notre Dame Lawsuit Rejected; University Appeals

The same day, a federal judge rejected the University of Notre Dame's request for a preliminary injunction against the federal contraceptive coverage rules, the AP/Evansville Courier Press reports (Coyne, AP/Evansville Courier Press, 12/23/13).

The university first challenged the rules in May 2012; it filed the latest suit in December 2013, after a judge dismissed the initial case because the Obama administration was still finalizing the contraceptive coverage rules.

The university argued that it, like houses of worship, should be completely exempt from the rules. The university claimed that the administration's accommodation still forces the school to comply with practices it views as immoral and that the requirements are tantamount to making the institution condone birth control and its acquisition (Women's Health Policy Report, 12/4/13).

U.S. District Chief Judge Philip Simon rejected those arguments, writing, "Notre Dame is not being asked to do or say anything it doesn't already do, and wouldn't do regardless of the outcome of this case; the only thing that changes under the healthcare law is the actions of third parties." He added, "Notre Dame can't claim to be 'pressured' to do something it has done, will do, and would do regardless of the contraception requirement" (McInerny, Indiana Public Media, 12/24/13).

On Dec. 23, the university filed an appeal in the 7th U.S. Circuit Court of Appeals (AP/Evansville Courier Press, 12/23/13).

Courts Grant Injunctions to Other Colleges, Universities

Meanwhile, several courts last week granted injunctions against the federal contraceptive coverage rules to other religiously affiliated academic institutions, Politico's "Pulse" reports (Millman, "Pulse," Politico, 12/30/13).

On Friday, a federal judge granted East Texas Baptist University and Houston Baptist University a preliminary injunction against the mandate. The two universities had argued that the rules violate the Religious Freedom Restoration Act (PL 103-141). The court agreed, stating, "The religious organization plaintiffs have shown a sincerely held religious belief that the court cannot second-guess" (Schulzke, Deseret News, 12/30/13).

Similarly, U.S. District Court Judge Joy Flowers Conti on Dec. 23 granted Geneva College a preliminary injunction against the rules, affirming a temporary injunction she had granted the college last year. Flowers Conti wrote, "Without [a preliminary injunction], Geneva will be forced to choose between: (a) violating its religious convictions by acquiescing to a government requirement that it facilitate access to abortion-inducing drugs and devices; and (b) violating its religious convictions by cancelling all health care coverage for its employees" (Lord, Pittsburgh Post-Gazette, 12/23/13).

Separately, U.S. District Judge Stephen Friot granted a preliminary injunction against the rules on Dec. 23 to four Oklahoma universities while their suit against the mandate is pending, the AP/CBS DC reports. The universities include Southern Nazarene University, Oklahoma Baptist University, Mid-America University and Oklahoma Wesleyan University (AP/CBS DC, 12/24/13).

According to "Pulse," judges also granted injunctions to Grace Schools in Indiana and Biola University in California ("Pulse," Politico, 12/30/13).