Court could take up HHS mandate next term

Beyond the fundamental fact that it leaves the Affordable Care Act intact, the Supreme Court’s 6-3 ruling June 25 upholding government subsidies to individuals who buy health insurance in the exchanges operated by the federal government in 36 states has no bearing on the federal mandate requiring coverage for contraception — including abortifacient drugs — under religious employers’ health plans.

Before the enactment of the Affordable Care Act in 2010, the American bishops repeatedly endorsed the principle of universal health care coverage embodied in the Affordable Care Act, while at the same time opposing any opening to abortion. The U.S. Conference of Catholic Bishops has fought the contraceptive mandate from the time it was first announced.

By contrast, the Catholic Health Association, which represents many church-related health care institutions, has supported the Affordable Care Act before and since its enactment and has raised no objections to the contraceptive mandate. President Barack Obama recently spoke to the CHA’s convention and thanked it warmly for that support.

Win and losses

Lawsuits directed against the HHS mandate by dozens of church-related institutions and groups, with Catholic ones prominent among them, are working their way through the courts. The issue could come before the Supreme Court as soon as its 2015-16 term, which begins in October.

While three other cases were recently handed temporary losses at the federal appellate level, another received a favorable ruling from the Supreme Court. On June 29, the court said that a group of Pennsylvania-based religious organizations, including Catholic Charities, would not be forced to comply with the HHS mandate while their case moved through the court system.

“This is the sixth time the HHS mandate has been before the Supreme Court, and the sixth time it has lost,” said Eric Rassbach, a lawyer with the Becket Fund for Religious Liberty. “Doesn’t our government have something better to do than fight charities serving the poor?”

The victory comes on the heels of three federal appeals court rulings against religious groups and institutions, including a June 23 ruling against the dioceses of Fort Worth and Beaumont, Texas, as well as rulings against cases involving the Archdiocese of Washington, the University of Notre Dame, The Catholic University of America, St. Thomas Aquinas College and the pro-life organization Priests for Life.

The Catholic groups said they would appeal to the Supreme Court. Other challenges to the contraceptive mandate by dozens of religious groups and institutions are working their way through the courts, and lower courts in a number of these have decided in favor of the religious plaintiffs.

In a pastoral letter released on Pentecost, Cardinal Donald Wuerl of Washington said “cultural forces and government actions” were making it harder for the archdiocese and its institutions to “carry out our work.”

“Claims of discrimination should not be allowed to become the new weapon for diminishing religious freedom and outlawing institutional Catholic identity,” Cardinal Wuerl said in the letter, entitled, “Being Catholic Today.”

In the first of the three recent appellate court decisions, a three-judge panel of the 7th U.S. Circuit Court of Appeals voted 2-1 on May 20 not to grant Notre Dame’s request for a preliminary injunction against having to be involved in the process of providing contraceptive and abortifacient health coverage under the Affordable Care Act.

The following day, in the case involving the Archdiocese of Washington and its co-plaintiffs, the U.S. Court of Appeals for the District of Columbia voted 6-3 against reconsidering a three-judge panel’s decision against them last year.

The protracted legal fight over the contraceptive mandate dates back to enactment of the Obama administration’s signature health care reform legislation in March of 2010. Before the crucial House vote on the measure, Obama, as the price of support by a handful of pro-life House Democrats, agreed to issue an executive order promising there would be no government funding for abortion under the program. Although the contraceptive provision is not part of the Affordable Care Act itself, the Department of Health and Human Services proposed rules for its implementation that required inclusion of contraception, sterilization and drugs that can cause early abortions be included in the health plans of religious employers. This quickly came to be known as the “HHS mandate.”

Hobby Lobby case

A key moment in the legal controversy came last June, when an acrimoniously split Supreme Court ruled 5-4 that “closely held” for-profit entities with religiously based objections to the contested coverage didn’t have to provide it. The case involved the Hobby Lobby chain of arts and crafts stores owned by an evangelical Christian family, the same family’s Christian bookstores and a wood cabinet company owned by a Mennonite family.

Writing for a court majority that included Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas, Justice Samuel Alito said extending religious free exercise protections to corporations like these “protects the religious liberty of the humans who own and control those companies.” The government, he said, failed to show it lacked other means of achieving its objectives and had an interest sufficient to justify violating religious liberty. Dissenting were Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

With the Hobby Lobby case having established the right of some for-profit enterprises to refuse on religious grounds to offer contraceptive coverage under the AFA, attention since then has turned to nonprofit religious employers.

Since the HHS mandate first appeared, the Obama administration has made several changes from the original version with the avowed aim of providing an “accommodation” to religious groups with conscientious objections. Houses of worship and some narrowly defined religious institutions have been exempt from the start, but the government has several times floated proposals for allowing other religious employers to opt out.

Religious ‘accommodation’

As matters now stand, such employers must notify the government in writing of their objections, and HHS or the Department of Labor then will tell the insurer or, in the case of self-insured institutions, the third-party administrator of the health plan to provide the contraceptive coverage at its cost.

One obvious question, frequently asked in light of this accommodation, is why merely requiring a religious institution or group to take the seemingly minimal step of notifying the government of its objections, in order to be excused from paying for the contested coverage, isn’t sufficient to satisfy the religious groups.

The religious groups reply that even this arrangement still requires them to play an indispensable role in providing the coverage they object to, since in being forced to notify the government, they are being compelled to take the first step in the process of making sure the coverage is provided.

Perhaps the most forceful answer to the question — why aren’t the religious groups satisfied with what the government is offering them? — was provided by federal Judge Janice Rogers Brown in her dissent from the May 20 ruling by the D.C. appeals court rejecting the appeal by the Washington archdiocese and its co-plaintiffs.

The reality of this government accommodation, she wrote, is that it “offers [the religious groups] only one real choice — they can renounce their religious scruples overtly or in practical effect.”

“If government co-opts their contractors and administrative structures to dispense advice, drugs and services that contravene their religious views, in effect, it has written contraceptive care, including access to abortifacients, into plaintiffs’ employment contracts and student health care agreements.

“Commandeering is not accommodation,” Brown said.

Russell Shaw is an OSV contributing editor.