WASHINGTON — In a June 29 order, the Supreme Court continued to shield several Pennsylvania religious institutions from having to provide employees with health care coverage that includes contraceptives.
The order in a case filed by the bishops and the Dioceses of Pittsburgh and Erie, Pennsylvania, their charitable institutions and a school said the government may not enforce the challenged provisions of the Affordable Care Act, pending final resolution of legal challenges on the merits of the institutions’ objections to what is known as the contraceptive mandate.
Justice Samuel Alito in April had granted an interim injunction to the Pennsylvania ministries.
Martin Nussbaum, a Colorado Springs, Colorado, attorney specializing in religious institutions and general counsel for the Catholic Benefits Association, explained to Catholic News Service that the June 29 order “is quite nuanced.” He said the effect of the order is to extend to the Pennsylvania church entities the same kind of temporary protection from having to provide contraceptive coverage that it previously granted to Wheaton College and the Little Sisters of the Poor.
The two dioceses, their charities and a prep school, each of which opposes the contraceptive mandate, continue to be shielded from having to comply, he said. They also do not have to follow procedures established by the Department of Health and Human Services that would trigger the provision for third-party administrators to provide insurance coverage for contraceptive services.
The order notes that the stay “should not be construed as an expression of the court’s views on the merits” of a future appeal of the organizations’ obligation to participate in the system set out by HHS.
It also said that “nothing in this interim order” affects the ability of employees of the church institutions to obtain “without cost, the full range of FDA-approved contraceptives.” Nussbaum explained that the order “preserves the status quo in which the affected plans may continue to exclude contraceptive services.”
HHS rules for the ACA set out two ways for faith-based institutions to avoid providing contraceptive coverage if doing so violates their religious beliefs. Entities such as dioceses, churches and religious orders are automatically exempt.
Religious nonprofit institutions that do not qualify for the exemption can follow the steps of an accommodation, as HHS calls it. That entails filing a form with their insurer or third-party insurance administrator, or sending a notice to HHS. For organizations with self-funded plans, those steps trigger a requirement for third-party administrators to provide employees with the coverage, at no cost to the employer and with no further involvement of the employer.
Without the injunction, the Catholic employers would have to provide insurance for contraceptives, follow the steps for the accommodation, or pay a fine of $36,500 per employee per year, according to an HHS mandate Web page maintained by the Becket Fund, a law firm which has brought many of the lawsuits on behalf of religious institutions.
The Pennsylvania religious institutions and others nationwide have sued, saying that following even the steps to trigger third-party provision of contraceptive insurance implicate the organizations in actions that violate their religious belief that artificial contraceptives are immoral.
The case is titled for Bishop David A. Zubik of Pittsburgh and Bishop Lawrence T. Persico of Erie, v. Sylvia Burwell, secretary of HHS, and other federal agency heads.
No case challenging the mandate or the accommodation as applied to faith-based nonprofit institutions has yet reached the Supreme Court. Several federal circuit courts of appeal have ruled that religious rights are not substantially burdened by the process required for the accommodation. Only one circuit court, the 11th, granted an injunction — to EWTN, a Catholic media conglomerate. That court heard oral arguments in February over whether the company has a valid claim that spares it from following the procedures.
The Supreme Court has, however, acted in favor of faith-based institutions that are suing over the contraceptive mandate each time it has come to the high court. Five of those actions, including twice in the Pennsylvania cases, were about an injunction pending further litigation.
In the sixth, last summer in a case brought by Hobby Lobby, the court ruled that closely held, for-profit companies such as the Oklahoma-based craft store chain, may qualify for a religious exemption from the mandate.
That decision did not address the claims of nonprofit faith-based entities such as religious colleges, hospitals and charities. But the Supreme Court did vacate decisions of the 6th and 7th U.S. Circuit Courts of Appeal and order those courts to reconsider two rulings in light of the Hobby Lobby decision. Those lower court rulings denied injunctions to the Michigan Catholic Conference and the University of Notre Dame, respectively.
Reconsidering upon remand, in a 2-1 ruling May 19, a panel of the 7th Circuit once again found that Notre Dame did not meet the burden of proving the Catholic university is entitled to an injunction shielding it from complying with the rules. It said it was not able to rule definitively on Notre Dame’s claims, but that the university had not met the burden of establishing it is entitled to a preliminary injunction.
One of the most widely reported religious challenges to the accommodation is by the Little Sisters of the Poor, who have a lawsuit pending a ruling by the 10th U.S. Circuit Court of Appeals, which heard arguments in the case in December.
A week earlier, on June 22, the 5th U.S. Circuit Court of Appeals ruled that religious rights are not substantially burdened by the accommodation. That case consolidated challenges brought by the Dioceses of Fort Worth and Beaumont, Texas, the University of Dallas and Catholic Charities of Southeast Texas and Fort Worth, as well as East Texas Baptist University, Houston Baptist University and the Pennsylvania-based Westminster Theological Seminary, which joined the two Baptist institutions’ suit as an intervenor.