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The Roman Catholic Archbishop of Washington and the University of Notre Dame were among more than 40 Catholic institutions that filed 12 lawsuits in various jurisdictions May 21 challenging rules on contraception that they said would force them to violate their sincerely held religious beliefs (Roman Catholic Archbishop of Washington v. Sebelius , D.D.C., No. 12-815, filed 5/21/12; University of Notre Dame v. Sebelius , N.D. Ind., docket number unavailable, filed 5/21/12).
The institutions asked various federal district courts, including the U.S. District Court for the District of Columbia and the U.S. District Court for the Northern District of Indiana, to declare that the Patient Protection and Affordable Care Act's mandate that employers cover contraception violates the Religious Freedom Restoration Act (RFRA) and the plaintiffs' Free Speech, Free Exercise, and Establishment Clause rights under the First Amendment to the U.S. Constitution.
The Jones Day law firm, which is representing the plaintiffs in the lawsuits, said in a statement that the challenged regulation “is in violation of the religious liberties guaranteed by the First Amendment” and other laws. The firm said it “looks forward to presenting its clients' cases in court.”
According to the release, the other lawsuits were filed in the U.S. District courts for the Western District of Pennsylvania, the Eastern District of New York, the Northern District of Texas, the Southern District of Mississippi, the Southern District of Ohio, the Northern District of Illinois, and the Eastern District of Missouri.
HHS did not respond to a May 21 request for comment on the lawsuits.
The rules, part of PPACA (Pub. L. No. 111-148), require employee group health plans to cover certain “preventive care” services for women with no copayment or cost-sharing. Violations of the regulations can subject an employer and/or its insurer to substantial monetary penalties. The regulations deem contraceptive services approved by the Food and Drug Administration, including sterilization and abortifacients, preventive services.
The Department of Health and Human Services published an interim final rule implementing the mandate in August 2011 (148 PBD, 8/2/11; 38 BPR 1453, 8/9/11).
On Jan. 20, HHS announced that it had modified the rule to allow employers that, “based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan” to take “an additional year, until Aug. 1, 2013, to comply” (13 PBD, 1/23/12; 39 BPR 149, 1/24/12).
Faced with ongoing objections from religious organizations, President Obama announced on Feb. 10 a compromise that would allow nonprofit religious groups affiliated with religious organizations to opt out of providing the coverage but would require their insurance providers to offer employees separate riders that include the coverage at no extra cost (28 PBD, 2/13/12; 39 BPR 301, 2/14/12).
In an advance notice of proposed rulemaking published March 21, the Obama administration reaffirmed its stance on contraceptive coverage but proposed funding options that would relieve a self-insured religious employer from paying for the coverage (52 PBD, 3/19/12; 39 BPR 534, 3/20/12).
In its May 21 complaint, the Archbishop (a corporation) said its lawsuit was “about one of America's most cherished freedoms: the freedom to practice one's religion without government interference.”
Through the contraceptive mandate, it said, “the Government seeks to require Plaintiffs … to violate their sincerely held religious beliefs by providing, paying for, and/or facilitating access to” abortion-inducing drugs, sterilization, and contraception.
“American history and tradition … safeguard religious entities from such overbearing and oppressive governmental action,” the complaint said.
Notre Dame similarly argued that the government does not have the right “to force” the university “to violate its own conscience by making it provide, pay for, and/or facilitate those services to others, contrary to its sincerely held religious beliefs.”
In a message announcing the filing, Notre Dame President Father John Jenkins said the lawsuit was not about “preventing women from having access to contraception, nor even about preventing the Government from providing such services.” Rather, Jenkins said, the lawsuit was intended to stop the federal government from imposing “its values on the University when those values conflict with our religious teachings.”
The Archbishop, in its complaint, explained that Catholic religious teachings “uphold the firm conviction that sexual union should be reserved to married couples who are so committed to one another that they are open to the creation of life; thus, artificial interference with the creation of life, including through abortion, sterilization, and contraceptives, is contrary to Catholic doctrine.”
In their complaints, the Archbishop and the university acknowledged that the contraceptive mandate contains an exception for “religious employers.” The exception, however, is overly narrow and would require overreaching by the government to determine if a particular institution satisfied the law's definition of “religious employer,” they said.
A religious employer, under the regulations, is one in which:
• “The inculcation of religious values is the purpose of the organization”;
• “The organization primarily employs persons who share the religious tenets of the organization”;
• “The organization serves primarily persons who share the religious tenets of the organization”; and
• “The organization is a nonprofit organization,” as described in certain sections of the Internal Revenue Code.
The Archbishop said that it does not know whether the Archdiocese of Washington, itself, would be able to take advantage of the exception given this definition. The Archdiocese, as well as the other plaintiffs in the lawsuit, the Consortium of Catholic Academies of the Archdiocese of Washington Inc., Archbishop Carroll High School Inc., Catholic Charities of the Archdiocese of Washington Inc., and the Catholic University of America, both employ and serve non-Catholics.
The Archbishop asked whether these institutions, to qualify for the exception, must “stop providing educational opportunities to non-Catholics, stop serving non-Catholics, and fire non-Catholic employees--actions that would betray their religious commitment to serving all in need without regard to religion and undermine the Church's vaunted tradition of service to others.”
Cardinal Donald Wuerl, archbishop of Washington, said in a May 21 news release that this “definition of religious institutions suggests that some of the very institutions that put our faith into practice--schools, hospitals, and social service organizations--are not 'religious enough.' ”
The plaintiffs sought relief under RFRA, which prohibits the government from substantially burdening an entity's exercise of religion absent a demonstration that the burden furthers a compelling governmental interest and is the least restrictive means of furthering that interest.
The mandate substantially burdens the institutions' exercise of their religion, and the government cannot demonstrate either a compelling need for the burden nor that the mandate is the least restrictive means of furthering its compelling interests, the complaints said.
The institutions claimed that the mandate violates the First Amendment in several ways: first, by substantially burdening their right to freely exercise their religion; second, by creating an “excessive entanglement” between religion and the government by requiring institutions seeking exceptions from the mandate “to submit to an invasive government investigation” into their religious beliefs; and, third, by forcing Catholic institutions to engage in compelled speech of an “ideological principle that the speaker finds unacceptable.”
Additionally, the institutions accused the federal government of religious discrimination in violation of the First Amendment. They also said the regulations implementing the contraceptive mandate unlawfully interfered with internal church governance in violation of the First Amendment.
The institutions are seeking a declaratory judgment that the mandate violates RFRA and the First Amendment. They also asked the courts to grant an injunction prohibiting the federal government from enforcing the mandate, and sought an order vacating the mandate.
Stephen J. Brogan, Mary Ellen Powers, Noel J. Francisco, Gregory M. Shumaker, Michael A. Carvin, Eric S. Dreiband, and David T. Raimer of Jones Day, Washington; and Paul M. Pohl, of Jones Day, Pittsburgh, represented the Archbishop.
Matthew A. Kairis, Eric E. Murphy, and Brandy H. Ranjan of Jones Day, Columbus, Ohio; Carol A. Hogan and Brian J. Murray of Jones Day, Chicago; Leon F. DeJulius Jr. of Jones Day, Pittsburgh; and Marianne Corr of the University of Notre Dame, Notre Dame, Ind., represented the university.
A prior lawsuit challenging the contraceptive mandate was filed Feb. 23 by the attorneys general of seven states--Florida, Michigan, Nebraska, Ohio, Oklahoma, South Carolina, and Texas (37 PBD, 2/27/12; 39 BPR 422, 2/28/12).
Other lawsuits challenging the mandate that have been filed nationwide include: Belmont Abbey College v. Sebelius, D.D.C., No. 11-1989, filed 11/10/11; Colorado Christian University v. Sebelius, D. Colo., No. 11-3350, filed 12/22/11; Eternal Word Television Network Inc. v. Sebelius, N.D. Ala., No. 12-501, filed 2/9/12; Ave Maria University v. Sebelius, M.D. Fla., No. 12-88, filed 2/21/12; and Geneva College v. Sebelius, W.D. Pa., No. 12-207, filed 2/21/12.
The Obama administration Feb. 16 moved to dismiss the Belmont Abbey case (34 PBD, 2/22/12; 39 BPR 420, 2/28/12).
By Mary Anne Pazanowski
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