The HHS Mandate and Religious Liberty: An Update

Adèle Auxier Keim

Adèle Auxier Keim is counsel for The Becket Fund for Religious Liberty, 3000 K Street NW, Suite 220, Washington, DC 20007; akeim@becketfund.org.

Editor’s Note: This piece is a follow-up to “The HHS Mandate and Religious Liberty: A Primer,” which was included in “Campus Progressivism: Top-Down and Bottom-Up,” the special section in the Winter 2013 Academic Questions.

Much has happened since the Winter 2013 Academic Questions went to print. The Supreme Court agreed to hear not one, but two HHS Mandate[1] challenges; the Little Sisters of the Poor and hundreds of other Catholic nonprofits received protection from the Mandate as the result of two unusual emergency orders from the Supreme Court; and the Religious Freedom Restoration Act (RFRA), the civil rights law being used to challenge the Mandate, celebrated its twentieth anniversary.

Supreme Court Cases. We now know that the Supreme Court will consider two HHS Mandate challenges this term, Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius. The cases involve Protestant families—one evangelical, one Mennonite—who object to offering potentially life-ending contraceptives in the health plans they provide to employees of their family businesses. The Court granted certiorari on November 26, 2013, and oral argument is scheduled for March 25, 2014.

For-Profit Cases. In November, the Seventh and D.C. Circuits deepened the circuit split between Hobby Lobby and Conestoga by ruling in favor of the Mandate’s religious challengers. Judge Janice Rodgers Brown, writing for a divided panel in the D.C. Circuit, held that although for-profit businesses could not successfully challenge the Mandate under RFRA, their owners could.[2] Seven days later, in another divided opinion, Judge Diane Sykes held that two businesses owned and operated by Catholic families had successfully asserted claims under RFRA.[3] The current circuit split—which the Supreme Court is expected to resolve this spring in Hobby

Lobby/Conestoga—is three-to-two in favor of religious business owners (Seventh, Tenth, and D.C. Circuits for; Third and Sixth Circuits against).

Nonprofit Cases. When the Winter 2013 Academic Questions went to print, no court had yet ruled on the government’s “accommodation,” the special rules for nonprofit religious organizations that that were scheduled to go into effect for many at midnight on December 31, 2013.[4] By December 31 federal courts had enjoined the “accommodation” in eighteen out of twenty decided cases, and on January 24, 2014, the Supreme Court granted an injunction in the nineteenth case, Little Sisters of the Poor v. Sebelius.[5] Little Sisters is a class action brought on behalf of Catholic nonprofit organizations that receive health benefits through the Christian Brothers Benefits Trust, so the Supreme Court’s order extends to hundreds of Catholic nonprofit organizations. As of this writing, only the University of Notre Dame remains without protection while it argues its case in the Seventh Circuit.

Appeals in Little Sisters and other cases are being briefed this spring. The plaintiffs in two cases, Archdiocese of Washington v. Sebelius and Priests for Life v. Sebelius, have asked the Supreme Court to take their case now, before the D.C. Circuit has even ruled on their appeals. Thus, a nonprofit mandate challenge could be before the Supreme Court as early as this spring or as late as spring 2015.

At the end of the day, it is up to the Supreme Court to determine whether RFRA protects the religious freedom of the hundreds of plaintiffs who have challenged the Mandate. But if the results so far are any indication, in the case of non-profit organizations that answer could well be a resounding yes.


[1]The HHS Mandate is a regulation that requires employer-provided group health insurance to cover all FDA-approved contraceptives, including the “emergency contraceptives” Plan B, Ella, and certain IUDs—which, the government admits, may prevent implantation of an embryo. Employers whose health plans do not cover these drugs and devices face severe fines—$100 per employee per day and $2,000 per employee per year—even if their health plans meet all the other Patient Protection and Affordable Care Act (ACA) requirements. The Becket Fund represents the plaintiffs in Hobby Lobby, Little Sisters of the Poor, and nine other cases challenging the Mandate. For more information, visit “HHS Mandate Information Central” (www.becketfund.org/hhsinformationcentral) at The Becket Fund for Religious Liberty.

[2]Gilardi v. United States Department of Health and Human Services, 733 F.3d 1208, 1215 (D.C. Cir. 2013).

[3]Korte v. Sebelius, 735 F.3d 654, 683 (7th Cir. 2013).

[4]Under the “accommodation,” religious colleges and other religious nonprofits may comply with the Mandate by signing and delivering a government-created form to their insurer or benefits administrator. The form informs the insurer or benefits administrator that it must offer employees contraceptives without cost sharing and not charge the religious nonprofit. The form also triggers the insurer’s or administrator’s right to be reimbursed by the federal government for the cost of any contraceptives provided. See 45 C.F.R. § 147.131(b) (describing the “accommodation” for religious nonprofits). These new requirements apply to the first health plan year that begins after January 1, 2014. See generally 78 Fed. Reg. 39,869 (July 2, 2013).

Churches and other houses of worship do not have to comply with the Mandate, because, according to HHS, church employees are more likely to agree with their employer’s religious objections to contraceptives or abortifacients. 78 Fed. Reg. at 39,874 (estimating that the employees of “[h]ouses of worship and their integrated auxiliaries” are “less likely than other people to use contraceptive services even if such services were covered”). The government has since admitted in litigation that it did not base this assumption on any empirical data.

[5]To keep up with these and other developments in the HHS Mandate cases, visit “HHS Mandate Information Central.”

 

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