The Catholic University of America




Zubik et al. v. Burwell et al., (U.S. Supreme Court, May 16, 2016)

 The Supreme Court vacated the prior decisions of the lower courts in the collection of cases that were presented in this case before the Supreme Court. The Catholic University of America was one of the plaintiffs in this case. While the Court did not rule on the merits of the case, it confirmed both sides agreed that contraceptive coverage could be provided without religious organizations needing to take any positive step toward facilitating the coverage. On remand the lower courts are to find an approach that accommodates the plaintiffs' religious exercise while ensuring women have access to contraception. The Court noted that through this litigation the petitioners have put the Government on notice they do not wish to provide contraceptive coverage. Since the Government is now on notice, it may not impose taxes or penalties or on petitioners for failing to provide notice. The Court did not address the merits of the case. See the Becket Fund page on the case for more on the Court's action.


Supreme Court grants cert on Nov. 6, 2015 in mandate cases, including Priests for Life, in which Catholic University is a party to the case. 

See SCOTUS blog for a summary, under title "Court to hear birth-control challenges" stating the birth control mandate has been the most challenged, in number of lawsuits, of all provisions of the Affordable Care Act.  See also the Clerk's letter to the lawyers challenging the mandate, noting the cases (7) will likely be heard in March.

Priests for Life, et al. v. U.S. Dept. of Health and Human Services, (C.A. D.C. Cir.), May 20, 2015, No. 13-5368 (Note: This is the case in which Catholic University is one of the Appellants)

On May 20, 2015, the Court of Appeals for the D.C. Circuit denied the motion filed by CUA and its co-plaintiffs for an en banc rehearing of their case by a 6-3 majority. The majority agreed with the previous panel’s opinion that the Health and Human Services regulation that requires religious organizations to submit required opt-out paperwork to their insurer or to the Government or pay large fines, does not substantially burden Appellants’ religious exercise. The majority distinguished Appellants’ case from the Supreme Court’s Hobby Lobby case, finding that the requirement to submit the religious accommodation paperwork does not make them facilitators or a party to contraceptive and abortifacient coverage. Further arguing that there is no substantial burden on religious organizations, the court found that the HHS mandate, requiring contraception coverage, is a mandate on insurers not on religious organizations.

In two extensive and strongly worded dissents, the judges that would have granted a rehearing of the case disagreed with the majority that the religious accommodation is not substantially burdensome. They argued that it was not the court’s role to determine the factual correctness of one’s religious belief but only whether it was sincerely held. The fact that the Appellants’ sincerely believed that by submitting the accommodation forms they would be facilitating delivery of contraception and abortifacients is all that is required to find a substantial burden under the Religious Freedom Restoration Act. While the dissenting opinions disagree as to whether the government has a compelling interest in free access to contraception and abortifacients, all agree that the religious accommodation requirements were not the least restrictive means the government has to provide women with free access to them.

Priests for Life, et al. v. DHSS & Roman Catholic Archdiocese of Washington, et al. v. Burwell, Nos. 13-5368 and 14-5201 (C.A. DC Nov. 14,  2014)

Nov. 14, 2014 decision by Court of Appeals for the D.C. Circuit holding that the *accommodation* provided for under the ACA does not substantially burden Plaintiffs' religious exercise, and that this was the least restrictive means by which the Government could accomplish what the court viewed as a compelling government interest. The Plaintiffs have filed a motion for rehearing en banc. See brief above.


History of Priests for Life (CUA included) mandate case against HHS

Nov. 6, 2015 Supreme Court grants cert-see above. 

On November 14th, 2014, the Court of Appeals for the DC Circuit denied religious non-profits, including The Catholic University of America, relief from compliance with the contraceptive mandate imposed by the Affordable Care Act. See Priests for Life, et al. v. DHSS & Roman Catholic Archdiocese of Washington, et al. v. Burwell, Nos. 13-5368 and 14-5201 (D.C. Cir. 2014).

On December 26, 2014, The Catholic University of America, along with The Roman Catholic Archbishop of Washington, Priests for Life, and other religious non-profits (Plaintiffs) filed a joint petition with the U.S. Court of Appeals for the DC Circuit, requesting review of the DC Circuit decision. This petition seeks review by the full Court of Appeals, rather than a panel of three of the judges. Plaintiffs argue enforcement of the HHS mandate rule compelling Plaintiffs to contract with third party insurance companies to provide payments for contraceptives (including Plan B and Ella) as well as facilitating delivery of the drugs/devices through documentation to the insurance company substantially burdens the Plaintiffs’ Exercise of Religion, as provided for in the Religious Freedom Restoration Act (RFRA).

The Court of Appeals, in its November decision, concluded the regulations do not substantially burden the Plaintiffs’ religious exercise, nor did the Government have a less restrictive way to provide access. 
This decision is at odds with the Supreme Court decision in June in Burwell v. Hobby Lobby Stores, Inc. et al. In that case the Court held the mandate as applied to a closely held for profit corporation with religious objections to the mandate violated the Religious Freedom Restoration Act( RFRA). RFRA prohibits the federal government from taking any action that substantially burdens religion unless the action is the least restrictive means of serving a compelling government interest. Hobby Lobby and other closely held for profit corporations objected to supplying four required drugs that operated after fertilization of an egg, and were thus considered abortifacients. The Court found the Government did not meet the least restrictive means test, and also found that the Religious Freedom Restoration Act was to be broadly applied.
The Petition for Rehearing filed by The Catholic University of America and other Plaintiffs asks the full Court of Appeals for the D.C. Circuit to acknowledge that the provisions of the mandate, including the filing of form EBSA 700 requires Plaintiffs to engage in conduct that violates their sincerely held religious beliefs or suffer substantial economic consequences. Submitting the required documentation would make the Plaintiffs morally complicit in the provision of contraceptive coverage, which is against the Roman Catholic religion. In addition, the third party administrators are to be reimbursed at 115% of their costs, so they are in essence financially rewarded, while Plaintiffs are subject to potential annual fines of $2,000 per employee for non-compliance.

Plaintiffs do not agree with the Government’s contention that the Plaintiffs are not in any way facilitating provision of drugs and devices that violate their sincerely held beliefs, and argue that The Religious Freedom Restoration Act was enacted by Congress to provide protection against such Government action. 
The brief filed on behalf of Plaintiffs notes that the holding in November goes against the June Supreme Court decision in Hobby Lobby in the following ways:

  1.  Refusing to acknowledge that filing the government form to facilitate the provision of contraception to employees of the Plaintiffs would in fact be contrary to the free exercise of religion and by failing to acknowledge the broad protection of RFRA.
  2. The religious entity, and not the court, should be the party deciding if an act makes the entity complicit in violating their religious beliefs.
  3. Failing to acknowledge that the Government is requiring the Plaintiffs to take actions, and it is not simply third party action that is compelled by the mandate.
  4. Failing to acknowledge that third party action is in fact contingent on actions the Plaintiffs are being coerced to take under the regulatory scheme as it currently stands.

The brief also reiterates the holding in Hobby Lobby that the Government had failed to meet either the compelling interest test or the least restrictive means test. As the Court noted in Hobby Lobby, the most straightforward way to achieve its goal would be for the Government to assume the cost of independently providing contraceptives to women who are unable to attain them. 
Priests for Life, et al. v. DHSS & Roman Catholic Archdiocese of Washington, et al. v. BurwellNos. 13-5368 and 14-5201 (C.A. DC Nov. 14,  2014)

Nov. 14, 2014 decision by Court of Appeals for the D.C. Circuit holding that the *accommodation* provided for under the ACA does not substantially burden Plaintiffs' religious exercise, and that this was the least restrictive means by which the Government could accomplish what the court viewed as a compelling government interest. The Plaintiffs have filed a motion for rehearing en banc. See brief above.

Interim Final Rule on Coverage of Certain Preventive Services Under the Affordable Care Act, scheduled for publication in the 8-27-14 Federal Register

Three years after publication of the intial rule, and after many court challenges by both for profits and not for profits, and one Supreme Court decision and one Supreme Court order (Wheaton College), the federal government has published a new interim final rule on the contraceptive mandate. There is a public comment period for 60 days after publication in the Federal Register. This rule gives religious not for profits, such as The Catholic University of America, the option of filling out the form that would be sent to the insurance company to trigger contraceptive coverage or communicating directly with the Department of Health and Human Services (or the Department of Labor for self insured plans) that the employer objects to the coverage. The government would then tell the providers about the objection, but under the rule, the insurer would still be required to offer the coverage. This rule is a recognition by the government that the proffered accommodations  would not meet court challenges.

Wheaton College v. Sylvia Burwell, Order in Pending Case, U.S. Supreme Court, July 3, 2014, No. 13A1284

This order granted Wheaton College an injunction from filing the much debated self-certification form which was put forth as an *accommodation* for religious not for profits who did not meet the very narrow definition of a religious employer set forth in the interim final rule published August 3, 2011. Under the proposed accommodation, coverage of the contraceptives would be arranged through a separate plan administered by insurers either directly or through third party administrators.

The form to be signed that would trigger the third party provision of contraceptives is EBSA Form 700, and a number of religiously affiliated employers, including Catholic University, brought suit against the government, claiming both constitutional and RFRA violations, as the form required steps to be taken by the religious employer that facilitated the provision of contraceptives.

In the Wheaton case, the Court basically stated that Wheaton had already informed the government it objected to providing contraceptive coverage, and thus Form 700 need not be provided by the College. The Court seems to be saying those with objections can dispense with the Form, and simply notify HHS in writing of religious objections to providing coverage for contraceptive services, and the Government may then proceed to facilitate this coverage.
Justice Sotomayor, joined by Kagan and Ginsburg, filed a lengthy dissent, accusing the Court of backing off from its seeming approval of the accommodation in Hobby Lobby.  Students and employees who desire the coverage would still receive it, but the agent would be the government rather than the religious employer.

The Court stated “Nothing in this order precludes the Government from relying on [Wheaton’s] notice [of its religious objection], to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act.” This sentence may be critical in allowing the Government to proceed to mandate participation by insurance companies, who by some reports have not agreed with the Government that the cost of the accommodation is zero, and thus are less inclined to make the process as seamless as the Government advertised.  For an interesting commentary on the case see Tom Goldstein, Where was Justice Breyer in the Wheaton College fight? (Updated), SCOTUSblog (Jul. 6, 2014, 8:09 AM).


EWTN v. HHS, Case: 14-12696 (June 30, 2014) (C.A. 11th Cir.)

I. Introduction

a. On June 30, 2014, the 11th circuit granted Eternal Word Television Network’s (“the Network”) motion for an injunction.
b. Under the Affordable Care Act (“ACA”) the Network would be forced to pay millions for abstaining from behavior that is contrary to its religious mission.

II. Relationship between ACA and EWTN

a. Part of the ACA, known as the HHS mandate, instructs employers to maintain an insurance plan covering all types of contraception approved by the FDA. This includes drugs and devices certain groups object to due to the possibility of causing early term abortions.
i. Churches and other religious employers are exempt from providing this coverage.
b. EWTN is a nonprofit Catholic media network with both television and radio programs.
i. While its mission and programming focus exclusively on Catholicism, it is not officially part of the Catholic Church and is therefore not covered by the religious exemption.
c. However, the ACA also extends what has been called an “accommodation” to those employers who are not officially part of a religion but who hold themselves out as religious institutions and object to the coverage.
i. By signing EBSA Form 700 an employer not only certifies that it has a religious objection to providing coverage, but also signals a third-party administrator that payment for the very coverage objected to must be made.
ii. Four objections from EWTN
1. Triggers payments
2. Notifies administrator which employees are on the plan
3. Places responsibility on EWTN to find willing administrator
4. Bars ability to influence administrator’s decision to provide coverage

III.  Reasons for Granting Injunction
a. The Network Is Substantially Likely To Prevail on the Merits of Its Appeal.
i. There Is a Substantial Likelihood that the Mandate Substantially Burdens the Religious Practices of the Network.
1. “… [W]ithout the form, the administrator has no legal authority to step into the shoes of the Network and provide contraceptive coverage to the employees and beneficiaries of the Network.”
ii. There Is a Substantial Likelihood that the Mandate Is Not the Least Restrictive Means to Address Any Compelling Government Interest.
1. “The United States, for example, could require the Network to provide a written notification of its religious objection to the Department of Health and Human Services, instead of requiring the Network to submit Form 700 – an instrument under which the health insurance plan is operated – to the third-party administrator.”
b. The Network Has Established a Substantial Risk of Irreparable Injury.
i. “The discussion by the United States of the injunction granted in Little Sisters of the Poor, Home for the Aged v. Sebelius, 571 U.S. ___, 134 S. Ct. 1022 (2014), illustrates the irreparable harm likely to result if we deny the Network’s motion.”
ii. “The Network will suffer irreparable harm without the injunction: the Network will be subject to fines or will be required to [sign] and deliver Form 700 to its third-party administrator, an act it alleges constitutes material cooperation with evil.”
c. No Harm Will Result to the Appellees or to the Public.
i. “The employees at the Network have never been provided contraception. An injunction would maintain the status quo. Moreover, the United States has exempted thousands of religious employers from the mandate, and the United States has grandfathered countless other plans.”

(update by WSR)

Burwell v. Hobby Lobby Stores, Inc., et al., Decided June 30, 2014 Supreme Court.

The Court holds the HHS ACA regulations as applied to closely held for profit corporations violate RFRA, which prohibits the federal government from taking any action that substantially burdens religion unless the action is the least restrictive means of serving a compelling government interest. Hobby Lobby and other closely held for profit corporations objected to supplying four required drugs that operated after fertilization of an egg, and were thus considered abortifacients. The Court found the Government did not meet the least restrictive means test, and also found that the Religious Freedom Restoration Act was to be broadly applied. While the Court discussed the accommodation provided for religious not for profits as an alternative, the Court specifically noted at page 44:

We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims. At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.


Joint Principal Brief in Priests for Life, et al. and Roman Catholic Archbishop of Washington, et al. v. Sebelius, et al., filed on Feb. 28, 2014 in the U.S. Court of Appeals for the D.C. Circuit.
(includes Catholic University case)

Status of The Catholic University of America HHS Contraceptive Mandate Case


 In 2012, The Catholic University of America, the Archdiocese of Washington, and other Catholic non-profit organizations filed suit against the federal government objecting to the Affordable Care Act’s (ACA) requirement that their insurance plans provide coverage for contraception, including drugs that can terminate a pregnancy. While the ACA makes an exception for religious institutions such as houses of worship that mainly serve and employ members of their own faiths, there is no exception for schools, hospitals and charitable organizations that serve and employ people of all faiths. A year ago, the U. S. District Court in D.C. dismissed Catholic’s case as not “ripe” for review,, because the contraceptive Mandate was not yet final.

In July 2013, however, the Department of Health and Human Services published its final rule that included an “accommodation” by which non-profits such as Catholic University have the option of providing a "self-certification" to the insurer that we object to providing contraceptive coverage. The insurance company (or in some cases a third party administrator) is then required to make arrangements for the contraceptives to be provided for Catholic University employees free of cost. The premise is that the cost of the services will not be charged to the non-profit and that the non-profit takes no direct action to make such coverage come about.

After the final rule was issued, Catholic University and others renewed their litigation against the federal government. The suit by Catholic University alleges both a violation of the Constitution (Free Exercise of Religion, Free Speech) and a statute, the Religious Freedom Restoration Act (RFRA). Around the country, courts have in many instances found the Mandate, as applied to both religious for profit and non-profit entities, to be a violation of RFFA and/or unconstitutional. For a summary, see the Becket Fund web page.

On Dec. 20, 2013,the judge hearing Catholic University’s case held that the self-certification scheme did not impose a substantial burden on the exercise of the University’s sincere religious beliefs and thus did not violate RFRA. A co-plaintiff, Thomas Aquinas College, was found to be protected by RFRA as the college is self-insured; in the court’s view, a self- insured college may have to take more direct and substantial steps (such as identifying and contracting with a willing third party administrator) to offer the contraceptive benefits than Catholic University, which would use the self-certification process as part of a conventional insurance plan. (The Little Sisters of the Poor, who recently obtained an injunction in their suit against the government, have refused even to fill out the self-certification form.) In response, Catholic University filed for injunctive relief, meaning that the ruling could not be enforced until an appeal is heard by a higher court. The D.C. District Court denied the request for the injunction on Dec. 23, but the U.S. Court of Appeals for the District of Columbia granted an injunction on Dec. 31, 2013, after an emergency motion was filed.

Zubik v. Sebelius, No. 13-CV-1459 (Western Dist. Penn) 11-21-13

The plaintiffs made a motion for a an expedited preliminary injunction to enjoin the issuance, application and enforcement of a federal regulation under the PPACA, specifically 45 CFR 147.130(a)(1)(iv).

The court granted the motion in this joint suit by the Dioceses of Erie and Pittsburgh. The suit was brought by Bishop Zubik in his capacity as Bishop and Trustee of the Diocese of Pittsburgh and by Bishop Persico in his capacity as Bishop and Trustee of the Diocese of Erie. The Diocese of Pittsburgh is self insured through the Catholic Benefits Trust. Through this plan affiliated entities in the Diocese are covered, including Catholic Charities, parish schools and affiliated Diocese.  Neither the Diocese or the affiliated entities has offered contraceptive or abortion inducing drugs or sterilization, except when medically necessary. Similar facts (self insured through a third party administrator; coverage for schools in Diocese as well as charitable affiliated Catholic agencies) apply to the Diocese of Erie.

The court found immediate harm to plaintiffs in having to either violate their religious consciences in offering the plans or facing fines for denial of coverage. The court analyzed the case under RFRA. Key findings of act include the following:

(1) Plaintiffs hold sincerely to the religious beliefs of the Catholic faith that:

  •   human life is sacred from conception to natural death;
  •    worship, faith, and good works are essential and integral to the practice of Catholicism (“faith without   good  works is dead”); and
  •    the facilitation of evil is as morally odious as the proliferation of evil.

(2) Plaintiffs will refuse to provide, directly or indirectly, employee health insurance coverage for contraceptive products, services, or counseling, because doing so would violate their sincerely-held religious beliefs.

(3) The nonprofit, religious affiliated/related Plaintiffs will not complete the self-certification form because to sign the form  will and facilitate coverage of contraceptive products, services, and counseling by a TPA [Erie is self-insured] or health insurer.  The act of signing the self-certification form will violate these Plaintiffs’ sincerely-held religious beliefs.

(4) The nonprofit, religious affiliated/related Plaintiffs will be subject to substantial fines/penalties/“taxes” and other coercive governmental sanctions.

(5) The effect of the imposition of these fines/penalties/“taxes” will gravely impact spiritual, charitable, and educational activities, and the individuals who rely on the Church’s nonprofit, religious affiliated/related organizations for the basic needs of food, shelter, and education, as well as other charitable programs. The fines/penalties/“taxes” also will harm plaintiffs’ financial situation as donors to these spiritual/charitable/educational organizations may not wish to donate funds when the funds could be diverted to the Government in the form of fines/penalties/“taxes.”

In analyzing the substantial burden under RFRA, the court did not accept the Government's claim that the plaintiffs were merely being asked to sign a piece of paper. Rather, the Government is "asking Plantiffs for documentation for what Plaintiffs sincerely believe is an immoral purpose, and thus, they cannot provide it." The court noted "the religious employer “accommodation” separates the “good works (faith in action) employers” from the “houses of worship employers” within the Catholic Church by refusing to allow the “good works employers” the same burden-free exercise of their religion." The court further noted

Why should religious employers who provide the charitable and educational services of the Catholic Church be required to facilitate/initiate the provision of contraceptive products, services, and counseling, through their health insurers or TPAs, when religious employers who operate the houses of worship do not? To this question, the Government does not provide a direct answer. ****

What this Court finds equally problematic with the Government’s position is that the Bishops of these two Dioceses may freely exercise those same three religious tenets referred to above, as long as they espouse them within the confines of a “house of worship.” When they provide health insurance for the employees who work for the houses of worship, they are not in any moral danger of directly or indirectly providing contraceptive products, services, and counseling. However, these same two individuals, as the spiritual leaders for the Plaintiffs at issue in these cases, must personally take at least three affirmative actions (sign a self-certification form, compile a list of employees, and provide these to an insurer or TPA) in order to escape directly providing contraceptive products, services, and counseling to the employees of the charitable and educational agencies, while knowingly facilitating/initiating the process for the provision of contraceptive services, products, and counseling through a third party. The Bishops, given their three sincerely-held religious beliefs, while wearing their “house-of-worship” hats, are not in any moral peril; yet, when they wear their “head-of-the-‘good works’-agencies” hats, they must take affirmative actions which facilitate/initiate the provision of contraceptive products, services, and counseling in violation of their religious tenets.

In sum, the court held the regulation "places a substantial burden on Plaintiffs' right to freely exercise their religion-specifically their right to not facilitate or initiate the provision of contraceptive products."

In terms of the Government's argument that the regulation meets a compelling government interest, the court noted that granting an exemption for houses of worship is in and of itself an acknowledgment that the interest was not compelling enough to overcome the free exercise of religion by some religious employers.


Thus, the Government’s argument that its two stated compelling interests will not overbalance the exact same legitimate claims to the free exercise of religion (at times being raised by the same individuals – i.e., Bishop Zubik in the Pittsburgh case 13-cv-1459) when asserted on behalf of a different religious affiliated/related employer fails. If the Court were to conclude that the Government’s stated interests were sufficiently “compelling” to outweigh the legitimate claims raised by the nonprofit, religious affiliated/related Plaintiffs, the net effect (as noted above) would be to allow the Government to cleave the Catholic Church into two parts: worship, and service and “good works,” thereby entangling the Government in deciding what comprises “religion.” Accordingly, for purposes of reaching a decision on Plaintiffs’ Motions for Expedited Preliminary Injunction, the Court refuses to conclude that the Government has compelling interests which overbalance the legitimate claims to the free exercise of religion raised by the nonprofit, religious affiliated/related Plaintiffs.

Cert Granted by Supreme Court in Hobby Lobby and Conestoga Wood. Nov. 26, 2103

Korte v. Sebelius, No. 12-3841, Nov. 8, 2013 (7th Cir. C.A.)

The 7th Circuit reversed and remanded the case to the District Court ordering a permanent injunction barring enforcement of the contraceptive mandate in a case involving 2 closely held Catholic-led corporations, one from Indiana and one from Illinois. The two contested legal questions were 1) is a secular, for-profit corporation a person under RFRA;, and 2) does the contraception mandate substantially burden the religious-exercise rights of any of the plaintiffs, individual or corporate? Once the court decided the answer to both of the above questions was yes, then the government had the burden of justifying the mandate under strict scrutiny, which it failed to do.

The case relied almost solely on the Religious Freedom Restoration Act (RFRA). RFRA prohibits the federal government from placing substantial burdens on "a person's exercise of religion" unless it can demonstrate that applying the burden is the least restrictive means of furthering a compelling government interest. The court held the plaintiffs -business owners and their companies-may challenge the mandate, and that compelling the companies to cover these services substantially burdens their religious exercise rights, and that the government had not met its burden of meeting the strict scrutiny standard under RFRA.

The court noted at the outset noncompliance with the mandate is punishable by steep financial penalties and other civil remedies, one example being the $36,500 per year penalty per employee. The court found this to be a "concrete and particularized in injury." Standing for both the business owners and their companies was found because both "face an intangible but no less concrete injury to their religious-exercise rights. It is axiomatic that organizational associations, including corporations, act only through human agency. *****Compelling a person to do an act his religion forbids, or punishing him for an act his religion requires, are paradigmatic religious-liberty injuries sufficient to invoke the jurisdiction of the federal courts.”

The court emphasized RFRA protects First Amendment Free exercise rights and noted that, "once the moving party establishes a likelihood of success on the merits, the balance of harms normally favors granting preliminary injunctive relief because injunctions protecting First Amendment freedoms are always in the public interest."  The court stated at page 23:


The Kortes and the Grotes face an intangible but no less concrete injury to their religious-exercise rights. It is axiomatic that organizational associations, including corporations, act only through human agency. See Reich v. Sea Sprite Boat Co., 50 F.3d 413, 417 (7th Cir. 1995) (“incorporeal abstractions act through agents”). As owners, officers, and directors of their closely held corporations, the Kortes and Grotes set all company policy and manage the day-to-day operations of their businesses. Complying with the mandate requires them to purchase the required contraception coverage (or self-insure for these services), albeit as agents of their companies and using corporate funds. But this conflicts with their religious commitments; as they understand the requirements of their faith, they must refrain from putting this coverage in place because doing so would make them complicit in the morally wrongful act of another.

The court rejected the government's argument that the Anti-injunction Act applied in this case. That Act was to ensure proper collection of taxes.  The court found the payment to be primarily a penalty, and noted "The sheer size of the required payment fairly screams "penalty", and that the purpose of the scheme is best understood as regulatory and punitive rather than revenue raising."

While RFRA does not define "person", the Dictionary Act allows the court to construe the corporations as persons. The court also noted the grant of First Amendment rights (free speech) to corporations in Citizens United. The court refused to draw the line of protection at the line of religiously affiliated nonprofit corporations, and distinguished RFRA from the religious employer exemptions under the ADA and Title VII, noting the judicial remedy under RFRA is "both broader and more flexible" and can only be overridden by a compelling government interest.

The court stated: " RFRA represents a congressional judgment that the rule of Smith is insufficiently protective of religious liberty." The court noted further  "RFRA operates as a kind of utility remedy for the inevitable clashes between religious freedom and the realities of the modern welfare state, which regulates pervasively and touches nearly every aspect of social and economic life.”

The government failed to meet the compelling government interest test.

This argument seriously misunderstands strict scrutiny. By stating the public interests so generally, the government guarantees that the mandate will flunk the test. Strict scrutiny requires a substantial congruity— a close ‘fit’—between the governmental interest and the means chosen to further that interest. Stating the governmental interests at such a high level of generality makes it impossible to show that the mandate is the least restrictive means of furthering them. There are many ways to promote public health and gender equality, almost all of them less burdensome on religious liberty.

In a similar vein, the government did not show it had used the least restrictive means.

Indeed, the government has not even tried to satisfy the least-restrictive-means component of strict scrutiny, perhaps because it is nearly impossible to do so here. The regulatory scheme grandfathers, exempts, or “accommodates” several categories of employers from the contraception mandate and does not apply to others (those with fewer than 50 employees). Since the government grants so many exceptions already, it can hardly argue against exempting these plaintiffs.20 Moreover, there are many ways to increase access to free contraception without doing damage to the religious-liberty rights of conscientious objectors. The plaintiffs have identified a few: The government can provide a “public option” for contraception insurance; it can give tax incentives to contraception suppliers to provide these medications and services at no cost to consumers; it can give tax incentives to consumers of contraception and sterilization services. No doubt there are other options.

Gilardi v. HHS, No. 13-5609, Nov. 1, 2013 (C.A. D.C.Cir)

The Gilardi brothers are co-owners of Freshway, a Subchapter S Corporation with 400 employees. Freshway is self insured through a third party administrator, and the company, through its Catholic owners, excludes coverage for abortion, contraception and sterilization. If the Gilardis did not change the plan to comply with the PPACA, they faced penalties of over $14 million per year. The brothers brought suit, challenging the mandate under RFRA, The Free Exercise Clause, the Free Speech Clause and the Administrative Procedure Act. The district court denied the claim for a preliminary injunction.

The District Court found the company did not have standing to bring a First Amendment claim as the company could not exercise religion, and thus there was no substantial burden. The district court found any burden on the Gilardi brothers was indirect.

The Court of Appeals noted "free exercise protection- a core bulwark of freedom-should not be expunged by a label. But for now, we have no basis for concluding a secular organization can exercise religion." Freshway had argued the Citizens United case gave corporations rights, but the court noted speech rights have deeper roots than free exercise rights.

The court found that the Gilardi brothers clearly had standing under the Religious Freedom Reformation Act. The court noted as follows:  

We begin with the peculiar step of explaining what is not at issue.This case is not about the sincerity of the Gilardis' religious beliefs, nor does it concern the theology behind Catholic precepts on contraception. The former is unchallenged, while the latter is unchallengable.


The Free Exercise rights of the brothers exists independently of any rights of the corporation and their free exercise is running their corporation as they choose, in accord with their beliefs.

The court rejected the government argument that the burden on the Gilardis was remote and attenuated. Instead, the Court of Appeals noted that "The burden on  religious exercise does not occur at the point of contraceptive purchase; instead, it occurs when a company's owners fill a basket of goods and services that constitute a health care plan." Further, an endorsement of such a purchase-"procured exclusively by regulatory ukase-is a compelled affirmation of a repugnant belief."

The burden is substantial as the government "commands compliance by giving the Gilardis a Hobson's choice. They can either abide by the sacred tenets of their faith, pay a penalty of over $14 million, and cripple the companies they have spend a lifetime building, or they become complicit in a grave moral wrong."

The government failed to make the case for a compelling government interest. The government could not figure out which interest to cite, was harmed by the scattershot/nebulous claim of public health, women's autonomy, and gender equality. The Court of Appeals referred to the government's argument as "empty, reflexive and talismanic."  To the extent that it relates to the statutory scheme (make the ACA work a la Social Security), the ACA will retain its “comprehensive sweep” regardless of the mandate. There were no concerns about “private veto” by religious opt out, because employees will still receive most of the services covered in the regulation: HPV, screenings, STD, etc. The Court of Appeals cited the uncertainty of the women's health argument, citing studies relating to carcinogenic impact of certain contraceptives.

In terms of least restrictive means, the government ignored viable alternatives suggested by plaintiffs and others. There were way too many exemptions and exclusions, some ephemeral, some permanent, with some 190 million Americans not covered for one reason or another.

Liberty University et al.  v. Jacob Lew et al., No. 10-2347 (C.A. 10th Circuit) File July 11, 2013.

Plaintiffs University and individual plaintiffs were found to have standing to bring a claim challenging the individual and employer health care mandate of the ACA. Plaintiffs alleged the mandates were not a valid exercise of authority under Commerce Clause; Congress did not have authority to under Article I of the Constitution, and the mandates violated Free Exercise of religion, Establishment Clause and Fifth Amendment Equal Protection rights. The Court dismissed for failure to state a claim upon which relief can be granted. Liberty announced it will appeal. The Court found Liberty's injury was imminent even thought the employer mandate will not go into effect until January 1, 2015.

Final Rule, Coverage of Certain Preventive Services Under the Affordable Care Act, HHS, June 28, 2013. Extends the safe harbor for student health plans of religious institutions of higher education until Jan. 1, 2014. Most of the rest of the rule remains similar to proposed rule. See HHS Press Release and HHS Guidance.

Hobby Lobby Stores Inc. v. Sebelius, Case No. 12-6294 (C.A. 10th Cir.) June 27, 2103
The 10th Circuit held that a for-profit business Hobby Lobby may exercise their right to religious freedom. Plaintiff established a substantial likelihood of success on the merits. The court found the government had not shown the mandate was justified by a compelling interest, nor that it was the least restrictive means of achieving the interest. The case was remanded to the district court.

Geneva College v. Sebelius, Findings of Fact and Conclusions of Law, and Order Granting Preliminary Injunction and enjoining the government from enforcing the requirements of 42 USC 300gg-13(a0(4) against Geneva College. U.S. Dist. Ct. Western Dist. Penn) filed 6-18-13. This case dealt with the requirement to have a student health plan in place by August 1, 2013 that would have included contraceptive coverage prior to the College's religious beliefs. If ordered to comply, the College would have dropped student insurance. The court found a  likelihood of success on the merits with respect to the assertion that Geneva College would suffer a substantial burden under RFRA. The government was found to not have met the compelling interest test for the rule.

Geneva College v. Sebelius, et al, Memorandum Opinion and Order Case No. 2:12-cv-00207,(U.S. Dist. Ct. Western Dist. Penn), filed 5/8/13

In a prior ruling the court had found the claims presented by Geneva College against the Contraceptive Mandate rules were not ripe, but the court left open the possibility of the College filing a motion for reconsideration, which it did. At the time of the motion, Geneva pointed out the new student insurance plan year begins August 1, 2013. Geneva was considering not offering student health insurance due to the moral and religious  unacceptability of the "accommodation" set forth in the proposed rules Feb. 6, 2013. If this route is chosen, Geneva would have to notify students by May 1, 2013. The government contended the  court could not make a conclusive judgment on non-final rules. The court disagreed, and agreed with Geneva College the claim was now ripe, in that the collection of rules (both proposed and final) would require the Colelge to " facilitate objectionable coverage by providing and paying for a plan that is itself necessary for the employee to obtain the objected to services...nor is it apparently free since a variety of costs contained in the Mandate would necessarily be passed onto the employer through premiums and/or administrative charges." Second, the court found Geneva to be suffering real and immediate harm now that it was in the process of contracting for student health insurance. Defendant's motion to dismiss was denied in part,and the claims found ripe for adjudication.


PPACA, Miscellaneous Minimum Essential Coverage Provisions, 78 Fed. Reg. 7348, Feb. 1, 2013. Includes Student Health Insurance Plans. The proposed rule at §156.602 declares that self-funded student health coverage offered to students by an institution of higher education as defined in the Higher Education Act, where the institution assumes the risk for payment of claims, qualifies as minimum essential coverage under the Affordable Care Act (ACA). Individuals covered by these plans would not be subject to the shared responsibility payment for not maintaining minimum essential coverage required by Sec. 5000A of the ACA.

HHS Proposed Rules on Contraceptive Mandate: Religious Accommodation, released 2/1/13. Comments due 60 days after published in the Federal Register. Actual document published in Federal Register is at 78 Fed. Reg. 8456 (Feb. 6, 2013). This proposed rule is the follow up to the March 21, 2012 ANPR that indicated the government would propose changes for religious organizations with objections to the mandate. In this proposed rule, there are several proposed approaches for self insured religious entities. The proposed rule would amend the exemption for religious group health plans by eliminating the first three prongs of the test for religiosity proposed in the August 3, 2011 interim final rule. Only the fourth prong will remain, which is the exemption will apply to an employer that is organized and operates as a nonprofit entity referred to in Section 6033(a) (3) (A) (i) or (iii) of the U.S. Tax Code. An accommodation would be provided for organizations (including institutions of higher education) that meet the following criteria:

(1) The organization opposes providing coverage for some or all of any contraceptive services required to
be covered under § 147.130(a)(1)(iv) on account of religious objections.

(2) The organization is organized and operates as a nonprofit entity.

(3) The organization holds itself out as a religious organization.

(4) The organization maintains in its records a self-certification, made in the manner and form specified by the Secretary of Health and Human Services, for each plan year to which the accommodation is to apply, executed by a person authorized to make the certification on behalf of the organization, indicating that the
organization satisfies the criteria in paragraphs (b)(1) through (3) of this section, and, specifying those
contraceptive services for which the organization will not establish, maintain, administer, or fund coverage,
and makes such certification available for examination upon request.

Coverage of the contraceptives is to be arranged by provision of the coverage through a separate plan administered by insurers. The insurers would be credited by the federal government for providing this stand alone coverage by reducing a user fee insurers must pay to sell policies through newly created health exchanges. The revised policy does not cover secular employers who have owners who oppose the mandate. The Department is considering different approaches for how to deal with providing coverage to participants and beneficiaries in plans that are self-insured plans maintained by eligible organizations.


Roman Catholic Archdiocese et al. v. Sebelius, Memorandum Opinion dismissing case for lack of ripeness, but declining to follow the decision in the Wheaton College case below.  U.S. Dist. Court, D.C. (Case # 12-0815) Jan. 25, 2013. This is The Catholic University case.

Hobby Lobby Stores, al.  v. Sebelius, Denial on Dec. 26, 2012 by Supreme Court (per Justice Sotomayor) of Hobby Lobby Stores petition for injunction on enforcement of mandate pending appeal. As a non-grandfathered plan the mandate applies to these employers effective Jan. 1, 2013.

Korte et al. v. Sebelius, (C.A. 7th Cir.) Case 12-3841, Dec. 28, 2012.

The Kortes and their construction company appealed the denial of their motion for a preliminary injunction against enforcement of provisions of the PPACA requiring the company to purchase a health insurance plan that includes no cost sharing coverage for contraception and sterilization. The motion for an injuction was granted by the 7th Circuit Court of Appeals. The court concluded the Kortes have established a reasonable likelihood of success on the merits and irreparable harm, and that the balance of harm tips in their favor. "RFFA prevents the federal government from imposing a substantial burden on a person's excercise of religioun even if the burden results from a rule of general applicability unless the government demonstrates that the burden in (1) in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling government interest." The court applied the strict scrutiny test and found the government had not shown a likelihood of meeting the compelling interest test, only a generalized interest, not have they shown irreparable harm. 

Monaghan and Domino's Farms Corp. v. Sebelius, Case No. 12-15488 (E.D. Mich.) filed 12-30-12.

Thomas Monaghan's emergency motion for a temporary restraining order against enforcement of the mandate is granted. The suit was brought contending the ACA mandate violates the RFRA, the APA, and the First Amendment (Free Exercise, Free Association, Establishment and Free Speech clauses). Exerpts from the decision are below.

On Standing: 

Monaghan states that once the mandate takes effect, he—as sole owner and director of DF—will be required by law to provide, through DF, health insurance coverage for contraception. Monaghan asserts that acting to have his company provide such coverage would cause him to commit a grave sin according to his religious beliefs. This argument is well-taken, since DF cannot act (or sin) on its own. Therefore, even though the ACA does not literally apply to Monaghan, the Court is in no position to declare that acting through his company to provide certain health care coverage to his employees does not violate Monaghan’s religious beliefs. They are, after all, his religious beliefs.

On Substantial Burden: 

The Supreme Court has held that “putting substantial pressure on an adherent to modify his behavior and to violate his beliefs” substantially burdens a person’s exercise of religion. Thomas, 450 U.S. at 718. As noted, the Court is in no position to decide whether and to what extent Monaghan would violate his religious beliefs by complying with the mandate. ***

As such, the Court will assume that abiding by the mandate would substantially burden Monaghan’s adherence to the Catholic Church’s teachings.

Narrow Tailoring:

Plaintiffs propose that the Government could provide the contraceptive services directly, or perhaps offer incentives to employers who provide for such services (as opposed to sanctioning employers who do not). In dealing with nearly identical factual circumstances, other courts have found that the government failed to meet its burden of proof. ***Yet at this point, the Court has insufficient information before it to adequately determine whether the Government’s interests are sufficiently “compelling,” or whether the Government’s actions are the least restrictive. Thus the Government has failed to carry its burden.

Wheaton College/Belmont Abbey v. Sebelius et al., 12/18/12 Per Curiam Order of the U.S. Court of Appeals for the D.C. Circuit.

These two cases were held in abeyance by an order of the court, pending publication of a promised new NPRM by March 30th, 2013. Standing was found, but the court said ripeness was a more difficult and thus put the proceedings on hold. The court stated as follows: 

At oral argument, the government went further. First, it represented to the court that it would never enforce [the Mandate] in its current form against the appellants or those similarly situated as regards contraceptive services.  There will, the government said, be a different rule for entities like the appellants, and we take that as a binding commitment. The government further represented that it would publish a Notice of Proposed Rulemaking for the new rule in the first quarter of 2013 and would issue a new Final Rule before August 2013.  We take the government at its word and will hold it to it.

Roman Catholic Archdiocese of New York, et al. v. Sebelius, et al., 12 Civ. 2542, filed 12/5/12 (U.S. Dist. Court E.D. New York)

The court rejected the reasoning found in many other court cases on the same topic and found that plaintiffs in this case plaintffs had standing and the temporary enforcement safe harbor does not prevent them from establsing imminent injuries. The court concluded the other courts had overestimated the significance of the ANPRM. (In the Wheaton/Belmont Abbey case above one of the Judges at oral argument noted the ANPRM was no more significant than a press release and no more binding.) Injury in fact can be economic or non-economic including (quoting a 2d Cir case) “a spiritual stake in First Amendment values.”

The court also found that because the regulation was final the Mandate was ripe for review.



College of the Ozarks v. U.S. Dept. of Health and Human Services et al, filed Sept. 17, 2012.

Wheaton College v. Sebelius, Case No. 1:12-cv-1169. Notice of Appeal (8-29-12) in the U.S. Dist. Court for DC, appealing the 8-24-12 decision by U.S. Dist. Judge Ellen Segal Huvelle granting the Government's motion to dismiss on the grounds that application of the preventive services mandate was hypothetical at this point in time.

Guidance on Temporary Enforcement Safe Harbor issued August 15, 2012.

Roman Catholic Archbishop of Washington, et al v. Kathleen Sebelius, Civil Action No. 12-cv-00815, Brief in Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss, Filed 8/27/12

Kirby v. Lexington Theological Seminary, CA, Commonwealth of Kentucky, No. 2010-CA-001798-MR, July 27, 2012.

Court decision granting summary judgment to defendant institution and dismissing breach of contract and racial discrimination claims filed by seminary faculty member following the elimination of his position due to a re-structuring of the seminary’s curriculum.The seminary was able to claim ministerial exception under Hosanna Tabor as plaintiff was hired in part to further spiritual education.

Newland v. Sebelius et al, Civil Action No. 1:12-cv-1123-JLK, (U.S. Dist. Court for the District of Colorado)

Decided July 27, 2012. In this case the court granted a preliminary injunction to a secular for profit employer owned by Mr. Newland. In accord with his Roman Catholic religious principles, he provides a self funded health care plan to his employees that does not cover contraceptives, sterilization or abortifactents. The plan is not grandfathered under the PPACA, and there is no religious employer exemption available for the company. The court granted the injunction enjoining Sebelius et al. from any application or enforcement or imposition of penalities against the Plaintiff. The court found the new law would substantially burden Plaintiff's free excercise of religion. The court flatly rejected defendant's argument that the injunction was contrary to the public interest because it would undermine the goal of providing "preventive health care", as the government had provided way too many exemptions to the law undermining the "alleged public interest"  and in any event the government goal was outweighed by the public interest in free exercise of religion. The court found RFRA provided adequate grounds for injunctive relief. 


State of Nebraska v. Sebelius et al. Civil Action No. 4:12CV3035, (U.S. Dist. Court for the District of Nebraska), Decided July 18, 2011. This case was dismissed for lack of standing. The court found the plaintiffs Pius X and Catholic Social Services had failed to plead specific facts showing they would not be grandfathered and thus could not show they would be subject to the rule. The court found Catholic Mutual's argument that it would suffer harm due to inability to change plan to maintain grandfathered status insufficient to allege standing to sue. The individual plaintiffs were also found to lack standing. The State of Nebraska was found not to have made a case for standing either, not meeting the burden of suffering direct injuries from defendant's challenged conduct. The court further noted that even if the State plaintiffs were able to establish Article III standing, the court would dismiss the claims on the ground they do not fall within the zone of interests protected by the First Amendment or RFRA, buying the defendants argument that the clauses in question and RFRA protect individual and not state rights. The court went on to opine in dicta that the claims were not ripe in light of the temporary enforcement safe harbor and the ANPRM.

Belmont Abbey College v. Sebelius et al.Civil Action No. 11-1989 (U.S. Dist. Court for the District of Columbia) Decided July 18, 2012. This case was dismissed for lack of standing.

UPSHOT: No standing because the rule is not final; not ripe for similar reasons. Court considers NPRM (and especially ANPRM) in general to be a preliminary and changeable policy commitment by Federal Government – and in the HHS case, the latest ANPRM (Mar 2012) an express and presumed credible indication of  Federal Government's flexibility on the issue.

Standing. ANPR is published proof of Federal Government's  flexibility  and therefore Belmont injury “too speculative to confer standing given the government’s clear intention to amend the regulations before the safe harbor lapses in order to accommodate” people like us.
• “They have published their plan to amend the rule to address the exact concerns plaintiff raises in this action…[showing] they intend to finalize the changes before the temporary enforcement of the safe harbor ends.”
Ripeness. Not ripe because agency has “interest in crystallizing its policy before that policy is subjected to judicial review.”
• Not “final enough” (again in light of ANPRM) to merit consumption of judicial resources: the “proposed rulemaking might obviate the need for judicial review” and since court “could not know what shape the final rule would take” it shouldn’t hear the case - yet.
• New set of comments coming, therefore Federal Government could change its mind.
• Reject Belmont Abbey argument that it’s as good as final: “The ANPRM merely ‘presents questions and ideas to help shape discussions’” regarding how to accommodate us.
• Reject Belmont Abbey argument  that Federal Government can manipulate the process by suggesting possibility of change, stretching out the timeline and making them spend resources and worry anticipating outcome: maybe later but not valid argument right now, no evidence that ANPRM a “non-substantive, thinly veiled attempt to evade review,” e.g., without an end date.
• Can come back to us once rule is final and unchanged.
• Fact that Belmont Abbey might incur costs anticipating the outcome of the rule is “not sufficient…to constitute a hardship.”

Standing – personal stake, imminent injury. Requires concrete and particularized, actual/imminent harm.
• Agrees must defer to our judgment that not grandfathered.
• Agrees that the temporary enforcement of the safe harbor is not enough basis to forestall assertion of harm – even if 2-3-6 years down the road it’s merely a delay of enforcement and does not make the injury less concrete. It “merely delays enforcement,” which “is not too remote.” “Thus, postponing enforcement…does not defeat standing.”


The Catholic University of America joined 42 other plaintiffs across the country on May 21st  in filing suit against the federal government because of the HHS contraceptive mandate that would force all institutions to pay for contraceptive coverage, which includes sterilization and drugs that cause abortions, all of which are contrary to the Catholic faith. The suit argues that the mandate violates the First Amendment and the Religious Freedom Restoration Act in forcing speech and actions contrary to the University’s deeply held religious beliefs, and the that notice and comment procedure violated the Administrative Procedures Act.

President Garvey's letter to The Catholic University Community

 Archbishop of Washington et al.v. Kathleen Sebelius et al., Case No. 1:12-cv-00815

Complete list of all May 21 Complaints on the Becket Fund Page (scroll down)


Student Health Insurance Final Rule, 77 Fed. Reg. 16453, March 21, 2012
This rule brings all except for self funded student health plans under the purview of the PPACA by defining student health insurance as a type of individual health coverage.  The contraceptive mandate is made applicable to student health insurance plans as well, through this action. The amendment applies to plans effective for policy years beginning after July 1, 2012, with non-profit religious institutions of higher edcation qualifying for a one year transition plan until the plan year beginning after August 1, 2013. The rule becomes effective April 20, 2012. There is a phase in for restrictions on annual dollar limits, with no annual dollar limits for policy years beginning on or after Jan. 1, 2014. If the student health insurance plan is not a grandfathered plan, then effective with the upcoming policy year, religious institutions of higher education will be required to maintain on file a self certification as to the qualification for the exemption and sending a *requisite notice* to students enrolled in the plan. This notice presumably means the notice that the institution the plan qualifies for a safe harbor, and may have to direct the student as to where to find contraceptive coverage. As with much of the mandate and related abortion coverage (see below on health exchanges) the rules are anything but clear. 

See "Catholic Colleges Upset by HHS Rule Requiring Student Health Plans to Comply with Mandate" posted 3/21/12 in the National Catholic Register. The article notes as follows: 

Catholic colleges and universities do not qualify for the narrow religious exemption to the mandate. Rather, they will likely fall under a second set of guidelines that the Obama administration describes as its “accommodation” for religious freedom.

The implementation of that accommodation has not yet been finalized and is currently the subject of a 90-day public comment period.

However, initial statements by the administration have suggested that religious organizations will be required to contract with an insurance provider, or third-party administrator, in the case of self-insured organizations, that will offer the coverage that the organizations find objectionable


Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg. 16501, March 21, 2012.
Advanced Notice of Proposed Rulemaking. Comments due June 19, 2012.
This rule sets up the questions and proposals for making insurance companies and third party administrators cover the cost of contraceptive coverage when the entity with the plan is a religious entity with objections to the contraceptive mandate. This is the so called Obama *accommodation* for religious employers. All religious employers should read this rule and other rules on this page. The rule notes that states with religious exemptions to contraceptive mandates would not be allowed to continue offering the exemption for religious organizations to the extent it conflicts with this rule. 

PPACA: Establishment of Exchanges and Qualified Health Plans: Exchange Standards for Employers; Final Rule, Interim Final Rule to be posted March 27, 2012 in Federal Register. See page 627 forward for segregation of funds for abortion services, along with the requirement when calculating cost of providing abortion services, to estimate the cost at not less then $1 per month per enrollee. See also Section 1303 of the PPACA.

Ave Maria University v. Kathleen Sebelius et al

(Middle District Fla. No 12-CV-88) (filed Feb. 21, 2012)

Geneva College v. Kathleen Sebelius et al. (Western District Pennsylvania) (filed Feb. 21, 2012)

States of Nebraska et al. v. U.S. Dept. Health and Human Services, et al. (U.S. District Court District of Nebraska) (filed Feb. 23, 2012)

Belmont Abbey College v. Sebeluis et al., Case No. 1:11-CV-01989

Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services under PPACA, 77 Fed. Reg. 8725 (Feb. 15, 2012)

These regulations finalize, without change, interim final regulations from Aug. 3, 2011 that require religiously affiliated organizations, either self insured or with group insurance coverage to offer contraceptive coverage. Per a statement on 2-10-12 the White House tried  to quiet the firestorm brought on by the 1-20-12 statement by Sebelius by stating that Catholic Universities and hospitals and other religiously affilated organizations may be able to obtain an out from the mandate as long the charities insurer provides contraceptive coverage to the covered employees and beneficiaries. The economics of this game plan have not been worked out, and some have pointed out there is a limited pot of health care dollars, and one way or another employees of universities and hospitals, along with the insitutions themselves, may be subsidizing the cost of the coverage.

The preamble makes the following points: 

  •   Appropriate to take into account “religious beliefs of certain religious employers” and “religious exemption is consistent with the policies in some States.”

•             Several mentions that some commentators “urged that the exemption… be rescinded in its entirety due to the importance of extending these benefits to as many women as possible.”  Some also urged that Govt “monitor [health] plans to ensure that the exemption is not claimed more broadly than permitted.”

•             Multiple mentions that contraceptives constitute “a basic health care need and would significantly reduce long-term health care costs.”

•             Women “have unique health care needs and burdens.  Such needs include contraceptive services.”  Status quo “places women in the workforce at a disadvantage compared to their male co-workers.  …[C]ontraception improves the social and economic status of women.”

•             Acknowledges that some advocated widening exemption and objected to paying for such coverage or being obliged to provide when contrary to their religious beliefs.

•             An exemption beyond the narrow one in the original rule (i.e., one that religious IHEs  advocated) “would lead to more employees having to pay out of pocket for contraceptive services, thus making it less likely that they would use contraceptives, which would undermine the benefits.”

•             In addition, such an exemption “would subject their employees to the religious views of the employer…thereby inhibiting the use of contraceptive services.”

•             Conclusory assertion that this is a neutral law of general application, no substantial burden on free exercise, does serve compelling governmental interests, and is least restrictive means. 

  • Guidance is being issued contemporaneous with these final regulations” to provide a 1-year safe harbor during which the Federal  Government  will work with religiously affiliated employers to “develop alternative ways of providing contraceptive coverage without cost sharing.”   This would require “issuers  to offer insurance without contraceptive coverage to such an employer and simultaneously to offer contraceptive coverage directly to the employer’s plan participants who desire it, with no cost sharing.”

 The rule linked above does not contain specifics on what will be required to qualify for an exemption, or if in fact an exemption must still be sought.

A February 11, 2012 editorial in the Wall Street Journal titled "Immaculate Contraception" highlights the smoke and mirrors economics of the latest announcement by the White House.

On January 20, 2012, the Obama Administration release two conflicting documents. The first document was a 1-20-12 Proclamation of Religious Freedom Day.

This document states as follows:

My Administration continues to stand with all who are denied the ability to choose, express, or live their faith freely, and we remain dedicated to protecting this universal human right and the vital role it plays in ensuring peace and stability for all nations.

Also on 1-20-12, the Department of Health and Human Services released a statement that the contraceptive mandate will become effective August 2012. The statement noted as follows: 

Nonprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law. Employers wishing to take advantage of the additional year must certify that they qualify for the delayed implementation.

It is not immediately clear what the certification will require. In the meantime, religous employers who do not offer birth control will be required to tell their employees where they may obtain it.   The USCCB has vowed to fight the mandate, and posted a video statement by Archbishop Timothy Dolan.More thoughtful commentary on governmental process was posted by Ross Douthat on Jan. 28, 2012, titled Government and its Rivals.

Note that currently student health insurance plans are outside the purview of the  PPACA and thus not covered by the mandate. See Student Health Insurance Coverage, Proposed Rule, 76 Fed. Reg. 7767, Feb. 11, 2011.This distinction seems to get glossed over in much of the coverage of the mandate. 



Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46621 (August 3, 2011) Interim Final Rule with Request for Comments.

For an excellent summary of why the contraceptive mandate (and very narrow exemption for *religious employers*) violates both the Religion and Free Speech Clauses of the Constitution, see the USCCB article on the mandate, as well as comments submitted to HHS by USCCB, which are linked from the bottom of the article.

St. Xavier University and St. Xavier University Adjunct Faculty Organization, IEA-NEA, Case 13-RC-22025, NLRB, Region 13, decided May 26, 2011.  The NLRB declined to follow , and ruled that St. Xavier was secular and thus the NLRB granted a petition for formation of a collective bargaining unit by adjunct faculty. For more see commentary by the Cardinal Newman Society and a paper titled the NLRB's Assault on Religious Liberty.

Final Rule, Regulation for the Enforcement of the Federal Health Care Provider Conscience Protection Laws, 76 Fed. Reg. 9968, Feb. 23, 2011, effective March 25, 2011.This rule rescinds in part and revises the Dec. 19, 2008 final rule on this topic.  The rule clarifies at 45 CFR § 88.2 the process for handing complaints by health care providers that they have been discriminated against on the basis of their religion under these rules. OCR will received the complaints.

These rules, known collectively as the "Church Amendments" are codified at 42 USC § 300a-7. There are five separate conscience provisions contained in the US Code, set forth in sections a-e. The Public Health Service Act at 42 USC § 238n prohibits the federal government and state and local governments receiving federal financial assistance from discriminating against a health care entity that  exercises its religious principles and refuses to undergo training in or make arrangements for abortions. The related Weldon Amendment has been repeatedly readopted in appropriations bills. This amendment (apparently not codified) provides as follows: 

"[n]one of the funds made available in this Act [making appropriations for the Departments of Labor, Health and Human Services, and Education] may be made available to a Federal agency or program, or to a state or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.’’

In addition, the Patient Protection and Affordable Care Act contains new health care provider conscience protections within health insurance exchanges. See Section 1303(b)(4) of the Act. See also Executive Order 13535, Ensuring Enforcement and Implementation of Abortion Restrictions in the Patient Protection and Affordable Care Act.

Briefs on Appeal to US Supreme Court of Walsh et al. v. Badger Catholic


Brief by Badger Catholic in Opposition

Brief by American Council of Education in support of University of Wisconsin

Petition and Brief in Support

Editor's Note: The decision in the case below is being appealed. (4/11)

Manhattan College v. Manhattan College Adjunct Faculty Union, New York State United Teachers, AFT/NEA/AFL-CIO, NRLB, Region 2, Case No. 2-RC-23543, January 10, 2011.
In this case, the Acting Regional Director for Region 2 decided to ignore the law established by Carroll College Inc. v. NLRB and University of Great Falls v. NLRB (which both relied upon a US Supreme Court decision NLRB v. Catholic Bishop of Chicago (1979). The Director held that it was permissible for the NRLB to undertake the task of judging just how Catholic Manhattan College is. The three part test from Great Falls states that a school is exempt from NLRB jurisdiction if it 1) holds itself out to students, faculty and the community as providing a religious educational environment; 2) is organized as a *nonprofit*; and 3) is affiliated with or owned, operated or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion. Manhattan Collge met this test, but the NLRB did not see it that way.

Christian Legal Society v. Wu, No. 06-15956; Order on remand to 9th Circuit Court of Appeals, Nov. 17, 2010.The issue before the court was whether or not the pretext issue of selective enforcement of the nondiscrimination policy raised by CLS was preserved. The court found it was not, as it was not included in the opening brief, and also CLS stipulated that the nondiscrimination policy was applied to all organizations. Thus, the argument not having been preserved, no further consideration was warranted.  The court left open the possibility of new litigation if Hastings applies the policy in a discriminatory way.

Badger Catholic Inc. v. Walsh, et a
., Nos. 09-1102 & 09-1112, 7th Cir. Ct. Appeals, decided Sept. 1, 2010.

In a follow up to University of Wisconsin v. Southworth, 529 U.S. 217 (2000) the University of Wisconsin-Madison was met with another challenge to how student fees would be allocated for university activities. Badger Catholic was recognized as a registered student organization in 2007. To obtain reimbursement for expenditures, each group must submit a budget for approval by the student government and then the administration. Badger Catholic's budgets have been rejected on the grounds that the speech was religious in character. The UW would not pay for three categories of speech: worship; proselytizing, and religious instruction. However, student activity fees could be used for discussion or debate from a religious perspective.

At issue were several programs, including a mentoring for busy students program that involved meeting with a spiritual director, including Catholic nuns and priests, and another program, a summer retreat, that included three masses and four prayer sessions. The UW denied funding for these programs on the grounds that it was against their policy. The district court concluded that reimbursing the expenses of religious speakers, through a program equally available to secular speakers, does not violate the Establishment Clause, and that having established a public forum (see Southworth above) the University must not exclude speakers who want to use the forum for worship.

The Court of Appeals agreed, holding that if the University of Wisconsin chose to pay for student led counseling, it could not exclude counseling that features prayer. The court reaffirmed that once the University creates a public forum, it must accept all comers, and is not free to shape the speech of Badger Catholic. The court stated there can be no doubt after Christian Legal Society that the University's activity fee must cover the six contested programs if similar secular programs are funded. The Court of Appeals noted that they believed the approach set forth in Widmar, Rosenberger v. Rector, and Southworth remained in place post Christian Legal Society, i.e. that universities must make recognition and funding decisions without regard to the speaker's viewpoint.