Texas District Court Grants Permanent Injunction In "Church Plan" Challenge To Contraceptive Mandate Compromise

In Catholic Diocese of Beaumont v. Sebelius, (ED TX, Jan. 2, 2014), a Texas federal district court issued a permanent injunction barring enforcement of the Affordable Care Act contraceptive coverage mandate compromise against the Catholic Diocese of Beaumont and Catholic Charities of Southeast Texas.  The court rejected the government's argument that no substantial burden is present here because of the special exemption of "church plans" from ERISA, on which enforcement against third-party administrators is based. The court said in part:

Requiring the head of a religious organization to sign a putatively correct statement of religious belief, which the Government has defined to authorize a third party to take an action that is contrary to those religious beliefs, imposes a substantial burden on the free exercise of religion. That conclusion is not changed by the Government’s argument that, at present, it does not have the power to compel the third party to act.

More Developments In Non-Profit Challenges To Contraceptive Mandate

As previously reported, on New Years Eve, U.S. Supreme Court Justice Sonia Sotomayor granted Little Sisters of the Poor an emergency temporary injunction blocking enforcement against them of the Affordable Care Act contraceptive coverage accommodation for religious non-profits. The federal government was ordered to file a response by 10:00 AM today.  Here is the Solicitor General's 37-page response filed today in Little Sisters of the Poor Home for the Aged v. Sebelius,  (Docket No. 13A691). As explained by today's Politico, Sotomayor must now decide whether to keep the temporary injunction in place, lift it, or refer the matter to all the Justices for them to decide to take one of those steps.  The Justices could also grant full Supreme Court review in the case even though there has not yet been a Court of Appeals decision.

In another development, on New Years eve the U.S. District Court for the Eastern District of Michigan granted a 14-day temporary restraining order (full text) in Ave Maria Foundation v. Sebelius. The order temporarily bars enforcement of the contraceptive coverage mandate against Ave Maria Foundation, Ave Maria Radio, Domino's Farms Petting Farm, Rhodora J. Donahue Academy, and Thomas More Law Center.  (TMLC Jan. 2 press release.) A hearing is scheduled Jan. 8 on whether to convert the TRO to a preliminary injunction.

Notre Dame Complies With Affordable Care Act Contraceptive Mandate Accommodation

In the flurry of decisions this week in suits by religious non-profits seeking protection from the Affordable Care Act contraceptive coverage accommodation, one institution that failed to obtain injunctive relief was Notre Dame University. (See prior posting.) According to WNDU, on Tuesday the University issued a statement saying:

Having been denied a stay, Notre Dame is advising employees that pursuant to the Affordable Care Act, our third party administrator is required to notify plan participants of coverage provided under its contraceptives payment program.

As part of an ongoing legal action, however, the program may be terminated once the university's lawsuit on religious liberty grounds against the HHS mandate has worked its way through the courts.

Meanwhile, at Balkinization blog, Marty Lederman has an excellent backgrounder on the non-profit contraceptive mandate cases, as well as this backgrounder on whether or not the broader mandate really involves a requirement to cover "abortifacients."

Justice Sotomayor and 3 Circuits Rule On Injunctions Pending Appeals By Non-Profits In Contraceptive Mandate Cases

With the approach of  the Jan. 1, 2014 effective date for the Affordable Care Act contraceptive coverage accommodation for religious non-profits (Final Rules in Federal Register), three circuit courts and a Supreme Court Justice yesterday ruled on motions for injunctions pending appeals by non-profits who lost at the district court level.

• The 7th Circuit denied Notre Dame University's emergency motion for an injunction pending appeal, but ordered expedited briefing and oral argument. (Full text of order.) (See prior related posting.) 
• The 10th Circuit denied Little Sisters of the Poor's emergency motion for an injunction pending appeal. (Full text of order.) (See prior related posting.) However late in the evening, Justice Sotomayor issued a temporary injunction blocking enforcement, and ordered a response by the federal government by 10:00 AM on Friday. (Full text of order from SCOTUSblog.)
• The D.C. Circuit, by a 2-1 vote, granted emergency motions for injunctions pending appeal filed by by Priests for Life (see prior posting) and by the various plaintiffs (other than Thomas Aquinas College that prevailed below) in the Roman Catholic Archbishop of Washington case. (Full text of motion.) Judge Tatel filed a dissenting opinion. The court also ordered the two cases consolidated for appeal. (Full text of Order and Opinion).  Appellants in both cases reacted in press releases. (Statement of Archdiocese; Statement of Priests for Life.)

 [Thanks to Stephen Blakeman for the lead.]

Colorado Federal Court: Contraceptive Mandate Accommodation Imposes No Substantial Burden On ERISA-Exempt Church Plans

In Little Sisters of the Poor Home for the Aged v. Sebelius, (D CO, Dec. 27, 2013), a Colorado federal district court denied a preliminary injunction to two non-profit homes controlled by Little Sisters of the Poor which sued to challenge the contraceptive coverage mandate accommodation under the Affordable Care Act. The homes provide health coverage to their employees through a self-insured "church plan" administered by a Catholic-affiliated non-profit corporation.  The court held that no substantial burden was placed on plaintiffs' religious exercise because "church plans" are exempt from ERISA under which the mandate accommodation is enforced. Little Sisters of the Poor only needs to fill out the self-certification form and provide it to its third-party administrator. According to the court:

It is undisputed that Christian Brothers Services is the third party administrator for the Trust.... Christian Brothers Services does not currently provide the Trust’s beneficiaries with access to sterilization, contraception, and abortion-inducing drugs and services, and it does not intend to do so in the future.... Defendants concede that they have no regulatory authority to require Little Sisters or the Trust to contract with a different third party administrator.... Thus, the Final Rules do not require Little Sisters or the Trust to designate, authorize, or create a provider-insured relationship with any third party that will provide their employees with access to contraception, sterilization, or abortifacients.

The Baltimore Sun reported yesterday that plaintiffs immediately filed an appeal and are seeking an injunction to block any fines while the appeal is pending.

Decisions In Non-Profit Challenges To Contraceptive Mandate Accommodation Continue To Be Issued

As health insurance decisions for the new year need to be made, decisions continue to be handed down by federal district courts in cases brought by religious non-profits challenging the adequacy of the accommodation created by the final contraceptive coverage rules under the Affordable Care Act.

In Michigan Catholic Conference v. Sebelius, (WD MI, Dec. 27, 2013), a Michigan federal district court refused to grant a preliminary injunction in a suit by Michigan Catholic Conference and Catholic Family Services of Kalamazoo. The court rejected RFRA, free exercise, free speech, Establishment Clause and "Weldon Amendment" challenges.  On the crucial issue of whether, under RFRA, the rule impose a substantial burden on plaintiffs' free exercise of religion, the court said in part:

although Plaintiffs assert that the accommodation requires them to participate in a scheme to provide contraceptives, in fact, it just does the opposite. It provides a mechanism for employers with religious objections to contraceptives, like Catholic Charities, to opt out of that scheme. This mechanism simply requires Plaintiffs to state that they choose to opt out based on their religious beliefs. The fact that the scheme will continue to operate without them may offend Plaintiffs’ religious beliefs, but it does not substantially burden the exercise of those beliefs.

In Diocese of Fort Wayne-South Bend, Inc. v. Sebelius, (MD IN, Dec. 27, 2013), an Indiana federal district court granted a preliminary injunction, finding that the Diocese affiliated charitable, educational and health care affiliates are reasonably likely to succeed on the merits of their RFRA challenge to the contraceptive coverage rules. The court said in part:

The plaintiffs have established that the accommodation compels them to facilitate and serve as the conduit through which objectionable contraceptive products and services are ultimately provided to their employees, in violation of their unquestionably sincerely held religious beliefs. While it is true that prior to the ACA's enactment, plaintiffs had notified their insurers/TPAs that objectionable contraceptive services were to be excluded from their health plans, never before had that notification triggered the provision of the services, nor were plaintiffs designating another to provide the services.

The court held that even though the Diocese itself is an exempt religious employer, it too has been burdened by the rule:

the Diocese is forced to modify its behavior and incur substantial costs to stay grandfathered under the ACA, or else it will be compelled to violate its religious beliefs by having Catholic Charities’ employees provided with a plan that covers objectionable contraceptive services....

In a separate decision using similar reasoning, the same Indiana federal district court judge granted a preliminary injunction to two Christian colleges-- Indiana-based Grace College and Seminary, and California-based Biola University-- shielding their employee and student health care plans from the arrangement that would have provided coverage directly from insurers or third-party administrators.  In Grace Schools v. Sebelius, (MD IN, Dec. 27, 2013) the court concluded that the mandate and the accommodation impose a substantial burden on plaintiffs' religious exercise.

Preliminary Injunction Denied In Contraceptive Mandate Challenge By Nashville Diocese Affiliates

In Catholic Diocese of Nashville v. Sebelius, (MD TN, Dec. 26, 2013), a Tennessee federal district court refused to grant a preliminary injunction in a lawsuit brought by the Diocese of Nashville, its affiliated Catholic Charities, and several other affiliated organizations including Aquinas College challenging the Affordable Care Act contraceptive coverage mandate.  The court held that plaintiffs had not shown a likelihood of success on their RFRA, free exercise, free speech and Establishment Clause claims. Finding that the accommodation for religious non-profits does not impose a substantial burden under RFRA, the court said that the burden imposed by the self-certification process required to trigger the accommodation "is too attenuated and speculative to be substantial."  It explained:

Plaintiffs bear no costs for the services and nothing is provided unless a third party employee independently requests the services from yet another third party – the insurer. It is only the independent actions of third parties that result in anyone obtaining contraceptive services.

Tom Monaghan Non-Profits Sue Challenging Contraceptive Mandate

A press release from the Thomas More Law Center reports that on Dec. 20  a new lawsuit challenging the Affordable Care Act contraceptive coverage mandate was filed on behalf of five non-profit corporations, all founded by Catholic philanthropist and Domino Pizza founder Tom Monaghan. The entities suing are the Ave Maria Foundation, Ave Maria Communications, Domino’s Farms Petting Farm, Rhodora J. Donahue Academy Inc., and the Thomas More Law Center. The complaint in Ave Maria Foundation v. Sebelius, (ED MI, filed 12/20/2013) was filed after plaintiffs were unsuccessful in their attempts to join in either of two other similar pending lawsuits.  On Dec. 23, shortly after bringing the new lawsuit, plaintiffs filed an Emergency Motion Motion for a Temporary Restraining Order and a Brief In Support (full text). The brief asserts that all of the plaintiffs" are nonprofit corporations that were founded upon, adhere to, and strive to further, the teachings of the Roman Catholic Church." The Thomas More Law Center, one of the plaintiffs as well as counsel for all the plaintiffs, is a non-profit public interest law firm based in Ann Arbor, Michigan that has filed numerous lawsuits defending religious freedom and pro-life positions.

4 Oklahoma Christian Colleges Win Contraceptive Mandate Preliminary Injunction

On Monday, yet another federal district court decided a challenge by religious non-profits to the Affordable Care Act contraceptive coverage mandate final rules.  In Southern Nazarene University v. Sebelius, (WD OK, Dec. 23, 2013), an Oklahoma federal district court granted a preliminary injunction to four Christian universities-- Southern Nazarene, Oklahoma Wesleyan,  Oklahoma Baptist, and Mid-America Christian-- which object to providing coverage for contraceptives they regard as abortifacients. The court concluded that the self-certification accommodation provided for religious non-profits in the ACA final rules violates RFRA.  The court said in part:

The self certification is, in effect, a permission slip which must be signed by the institution to enable the plan beneficiary to get access, free of charge, from the institution’s insurer or third party administrator, to the products to which the institution objects. If the institution does not sign the permission slip, it is subject to very substantial penalties or other serious consequences. If the institution does sign the permission slip, and only if the institution signs the permission slip, institution’s insurer or third party administrator is obligated to provide the free products and services to the plan beneficiary. It is no answer to assert, as the government does here, that, in self-certifying, the institution is not required to do anything more onerous than signing a piece of paper.... The government’s argument rests on the premise that the simple act of signing a piece of paper, even with knowledge of the consequences that will flow from that signing, cannot be morally (and, in this case, religiously) repugnant – an argument belied by too many tragic historical episodes to be canvassed here.

The court went on to find that the government had not demonstrated a compelling interest in enforcing the mandate, saying in part:

[T]he number of exemptions and exceptions ... is not just a convenient straw man: granting that there may well be a plausible basis for every exception that has been carved out of the mandate, the government’s arguments for a compelling interest in applying the mandate in every particular to these universities ring hollow in light of the collective effect of those exceptions and exemptions.

AP reports on the decision. (See prior related posting.)

Two Pennsylvania Religious Non-Profit Cases Rule Against Contraceptive Mandate Accommodation

In Perisco v. Sebelius, (WD PA, Dec. 20, 2013), a Pennsylvania federal district court granted the unopposed motion by the Catholic Diocese of Pittsburgh and the Catholic Diocese of Erie to convert a preliminary injunction against enforcement of the contraceptive coverage mandate granted in November (see prior posting) into a permanent injunction. The permanent injunction provides that the bishops will not have to authorize any charitable or educational entity under their control to sign the self-certification form called for in the final Affordable Care Act rules that set up an accommodation for religious non-profits, and that various charitable and educational affiliates will not need to comply with the mandate. In a statement following the decision, Pittsburgh Bishop David Zubik said that the government now is likely to appeal the decision to the 3rd Circuit. Pittsburgh Post-Gazette reports on the decision.

In Geneva College v. Sebelius, (WD PA, Dec. 23, 2013), a Pennsylvania federal district court granted a preliminary injunction, upholding Geneva College's objection under RFRA to complying with the final Affordable Care Act rules creating an accommodation for religious non-profits that object to the contraceptive coverage mandate. In June, the court had already granted Geneva College a similar preliminary injunction in connection with its student health insurance policies. (See prior posting.)  Now it has granted a similar injunction as to the College's health plan for its employees, finding that requiring the College to submit the self-certification form called for by the final rules likely creates a substantial burden on Geneva's religious exercise:

... [I]ts submission of the self-certification form is not too attenuated from the provision of the objected to services. Instead, it is the necessary stimulus behind their provision.... Courts should not undertake to dissect religious beliefs and second-guess where an objector draws the line when analyzing substantial burden questions.

Pittsburgh Post Gazette reports on the decision.

Two Important Decisions Handed Down On Contraceptive Coverage Accommodation For Religious Non-Profits

District court decisions continue to be handed down at a rapid pace in challenges by religious non-profits to the final Affordable Care Act contraceptive coverage mandate rules. Those rules (see prior posting) provide an accommodation for religious non-profits under which insurers or third party administrators will offer contraceptive coverage, instead of the objecting non-profit.

In University of Notre Dame v. Sebelius, (ND IN, Dec. 20, 2013), an Indiana federal district court rejected Notre Dame's claim that its rights under RFRA and the 1st Amendment are infringed by applying the accommodation in the final rules to its self-insured employee plan and its health insurance policies offered to students. The court summarized its 39-page decision as follows:

Notre Dame wants to eat its cake, and have it still, at the expense of Congress, administrative agencies, and the employees who will be affected. Notre Dame is free to opt out of providing the coverage itself, but it can’t stop anyone else from providing it. But that is essentially what Notre Dame is requesting.... Notre Dame can’t claim to be “pressured” to do something it has done, will do, and would do regardless of the contraception requirement. If Notre Dame opts out of providing contraceptive coverage, as it always has and likely would going forward, it is the government who will authorize the third party to pay for contraception. The government isn’t violating Notre Dame’s right to free exercise of religion by letting it opt out, or by arranging for third party contraception coverage.

Rick Garnett comments briefly on the decision at Mirror of Justice.

Meanwhile, the D.C. federal district court handed down a much longer (94 pages), more complicated and nuanced decision in Roman Catholic Archbishop of Washington v. Sebelius, (D DC, Dec. 20, 2013).  It held that under RFRA the accommodation does not impose a substantial burden on Catholic University's religious exercise when applied to the University's health plans offered through two insurance companies:

Through its self-certification, the religious organization declares its intention to step out of the process. That cannot be accurately characterized as an act that “facilitates” the employees’ access to the services.

However the court reached a starkly opposite result for co-plaintiff Thomas Aquinas College which offers its employees a self-insured health care plan administered by a third party administrator:

the obligation to take affirmative steps to identify and contract with a willing third-party administrator if the existing third-party administrator declines [to provide contraceptive coverage directly] forces the religious organization to do something to accomplish an end that is inimical to its beliefs. This involves the organization in facilitating access to contraceptive services, which the College has averred it cannot do, and it entails the critical element of modifying one’s behavior. Therefore, the College has met its burden to identify a burden on religious exercise imposed by the regulations governing self-insured plans.

The court then went on to dismiss for lack of standing challenges by several other educational, charitable and religious organizations that provide their employees health insurance through the Archdiocese's "church plan."  The court relied on a belated concession made by the government in this and some other cases that it lacks authority to enforce the requirement that third party administrators of "church plans" furnish contraceptive coverage on behalf of objecting organizations because the enforcement authority is derived from ERISA which does not apply to "church plans." The court explained:

Although the church plan plaintiffs are self-insured, and they are under the same obligation as Thomas Aquinas to self-certify and to transmit the form to the third-party administrator, that conduct does not give rise to a concrete, actual or imminent, cognizable injury in fact when it is performed by the church plan plaintiffs because there is no reason to believe that anything will happen after that. 

Additionally the court rejected plaintiffs' 1st Amendment free exercise and Establishment Clause claims and many of their free speech claims.  However it held unconstitutional as a free speech violation a provision in the regulations barring religious non-profits from directly or indirectly seeking to influence the third party administrator's decision to make arrangements for contraceptive services.

Finally the court addressed an argument that has been lurking in the background but was apparently pressed for the first time here-- that the contraceptive coverage mandate violates the Weldon Amendment which prohibits government agencies from discriminating against health care entities that do not provide, refer or provide coverage for abortions. The court said that it:

does not need to wade into this blend of science and theology and decide whether emergency contraceptives are “abortion-inducing” products or simply contraceptives in order to find that the mandate is consistent with the Weldon Amendment..... [T]here is no indication that the contraceptive mandate discriminates ... because they do not provide, pay for, provide coverage of, or refer for abortions. 

In a press release issued Saturday, the Archdiocese of Washington said it will immediately appeal the decision.

Two More Courts Issue Preliminary Injunctions In Non-Profit Challenges To Contraceptive Mandate Accommodation

Yesterday, two more federal district courts granted preliminary injunctions in RFRA challenges by religious non-profits to the final rules designed to accommodate their objections to the Affordable Care Act contraceptive coverage mandate. In Legatus v. Sebelius, (ED MI, Dec. 20, 2013), a Michigan federal district court held that requiring the non-profit organization Legatus to fill out the self-certification form indicating its religious objections amounted to a substantial burden on its free exercise of religion, since the form triggers provision of contraceptive coverage by the insurer. The court also concluded that the government is unlikely at trial to be able to show that it has a compelling interest for imposing the burden, or that it has used the least restrictive means to achieve it goals.

In Reaching Souls International, Inc. v. Sebelius, (WD OK, Dec, 20, 2013), an Oklahoma federal district court, relying largely on the 10th Circuit's Hobby Lobby decision in a for-profit case, found that the accommodation created a substantial burden on free exercise.  It granted a preliminary injunction barring enforcement against all nonprofit religious organizations that provide benefits to employees through health plans sponsored by the Southern Baptist Convention's GuideStone Financial Resources. Becket Fund issued a press release announcing the decision. [Thanks to Luke Goodrich for the lead.]

After 2 Wins, Religious Non-Profits Lose Challenge To Contraceptive Mandate Accommodation In D.C. Federal Distrct Court

After Pennsylvania and New York federal district courts in recent weeks held that the Affordable Care Act contraceptive coverage mandate accommodation for religious non-profits violates the Religious Freedom Restoration Act, yesterday the D.C. federal district court reached an opposite conclusion, rejecting both RFRA and 1st Amendment challenges to the final regulations. In Priests for Life v. U.S. Department of Heath and Human Services, (D DC, Dec. 19, 2013), the D.C. federal district found that no substantial burden was placed on a pro-life group's free exercise by requiring it to complete the self-certification form to opt into the accommodation for religious non-profits:

during oral argument Plaintiffs conceded that they have no religious objection to the self-certification form, in and of itself. Rather, Plaintiffs’ act under the accommodations becomes burdensome only when it is characterized as “cooperating” with or providing “authorization” for “the government’s illicit goal of increasing access to and utilization of contraceptive services.” ... But no matter how religiously offensive the statutory or regulatory objective may be, the law does not violate RFRA unless it coerces individuals into acting contrary to their religious beliefs.... In this case, it is only the subsequent actions of third parties – the government’s and the issuer’s provision of contraceptive services, in which Priests for Life plays no role – that animate its religious objections.

Staten Island Live reports on the reaction to the decision by  Rev. Frank Pavone, national director of Priests for Life:

Injunction or not, we will absolutely not obey, cooperate with, or tolerate in any way this unjust mandate. As Scripture says, we will obey God rather than men.

New York Religious Non-Profits Win Injunction Against Obamacare Contraceptive Coverage Rule

In Roman Catholic Archdiocese of New York v. Sebelius, (ED NY, Dec. 16, 2013), a New York federal district court granted an injunction to two Catholic schools and two Catholic health care organizations, preventing the federal government from enforcing the Affordable Care Act final contraceptive coverage mandate rules against them.  Under those rules, religious non-profits that do not qualify for a total exemption from the mandate may complete a self-certification form attesting to their religious objections and send that form to their insurer or third party administrator.  The insurer or administrator then-- under rules promulgated under ERISA-- must furnish contraceptive coverage to the non-profit's employees without charge.  In a new twist in this case, however, the government conceded that because all the plans involved in this case are "church plans," regulations under ERISA do not apply to them.

The court held that, under the Religious Freedom Restoration Act, the self-certification requirements in the final contraceptive coverage rules substantially burden the religious exercise of plaintiff organizations, and the government failed to show that these rules are the least restrictive means of advancing a compelling governmental interest. The court said in part:

As for the self-certification requirement, the Court rejects the Government’s position that plaintiffs may be compelled to perform affirmative acts precluded by their religion if a court deems those acts merely "de minimis." This argument – which essentially reduces to the claim that completing the self-certification places no burden on plaintiffs’ religion because "it’s just a form" – finds no support in the case law....

Plaintiffs’ religious objection is not only to the use of contraceptives, but also to being required to actively participate in a scheme to provide such services. The Government feels that the accommodation sufficiently insulates plaintiffs from the objectionable services, but plaintiffs disagree. Again, it is not the Court’s role to say that plaintiffs are wrong about their religious beliefs.

Finding a substantial burden, the court went on to conclude that the government had not shown a compelling interest to impose the burden:

Tens of millions of people are exempt from the Mandate, under exemptions for grandfathered health plans, small businesses, and "religious employers" like the Diocesan plaintiffs here. Millions of women thus will not receive contraceptive coverage without cost-sharing through the Mandate. Having granted so many exemptions already, the Government cannot show a compelling interest in denying one to these plaintiffs....

Finally, but very significantly, the Government’s belated revelation that the regulations do not even require plaintiffs’ TPAs to provide contraceptive coverage [because they are "church plans"] fatally undermines any claim that imposing the Mandate on these plaintiffs serves a compelling governmental interest.... In other words, the Mandate forces plaintiffs to fill out a form which, though it violates their religious beliefs, may ultimately serve no purpose whatsoever. A law that is totally ineffective cannot serve a compelling interest.

The court also found that numerous less restrictive alternatives are available, such as direct government provision of contraceptive services or insurance, or furnishing of coverage through third parties without requiring the objecting employer's active participation.

While thus granting an injunction to diocese-affiliated schools and health care organizations, the court refused to grant an injunction barring enforcement against the two diocese plaintiffs themselves, because under the final rules they are completely exempt from the mandate.  In doing so, the court rejected the rationale relied upon by a Pennsylvania federal district court last month in granting a preliminary injunction in a similar challenge. (See prior posting.)  The New York court said:

Count VI of the Amended Complaint alleges that the Mandate unconstitutionally interferes with the Catholic Church’s internal governance by "artificially splitting the Catholic Church in two," dividing its religious arm from its charitable and educational arms.... The Mandate does not "split" the Catholic Church in two – it does not require any change to the religious structure, hierarchy or organization of the Church and its affiliated organizations. At most, it could "split" the Church’s health plan in two. The prohibition on interference with internal church governance applies to ecclesiastical matters such as the selection and supervision of ministers by religious authorities, and plaintiffs have not cited any case that even remotely suggests that a health plan may constitute a matter of "internal church governance" protected by the First Amendment.

Newsmax reports on reaction to the decision. [Thanks to Geoff Surtees for the lead.]

James Dobson's Family Talk Sues Over Contraceptive Coverage Mandate

This week another religious non-profit filed a challenge to the Affordable Care Act contraceptive coverage mandate.  The complaint (full text) in Dobson v. Sebelius, (D CO, filed 12/10/2013), seeks an injunction to prevent enforcement of the mandate against Family Talk, its founder James Dobson, and the third party administrators of its health insurance plans. The suit alleges:

Based on the Bible’s religious and moral teachings, Plaintiffs sincerely believe that the termination of the life of a preborn child by, among other means, abortion-inducing drugs and devices, and related education and counseling, including by means of acting after fertilization to prevent the newly formed embryo from implanting into his or her mother’s uterus, is an intrinsic evil and a sin against God for which Plaintiffs will be held accountable.

ADF issued a press release announcing the filing of the lawsuit.

District Court Issues Preliminary Injunction To Await SCOTUS Contraceptive Mandate Decision

In Randy Reed Automotive Inc. v. Sebelius, (WD MO, Dec. 3, 2013), a Missouri federal district court, with agreement of both parties, issued a preliminary injunction in a small business RFRA challenge to the Affordable Care Act contraceptive coverage mandate.  The injunction is effective until 30 days after the U.S. Supreme Court issues its ruling in the Hobby Lobby and Conestoga cases in which it recently granted certiorari to decide similar challenges. The complaint (full text) in Randy Reed Automotive, a challenge by several Missouri automotive dealerships and their Christian owner, was originally filed on Oct. 18, 2013. Kansas City Business Journal reports on the district court's ruling.

Religious Non-Profits Continue To File Suits Challenging Contraceptive Coverage Mandate Accommodation

Suits continue to be filed, or re-filed, by religious non-profits challenging the Obama administration's final rules creating an accommodation in the application of the Affordable Care Act contraceptive coverage mandate to them.  The latest suits are:

• Fellowship of Catholic University Students v. Sebelius, (D CO, filed 12/3/2013) (full text of complaint) (ADF press release).
• University of Notre Dame v. Sebelius, (ND IN, filed 12/3/2013) (full text of complaint) (Notre Dame press release).

Cert. Denied In Broad Religious Rights Challenge To Provisions of the Affordable Care Act

The U.S. Supreme Court today denied certiorari in Liberty University v. Lew, (Docket No. 13-306, cert. denied 12/2/2013). (Order List.) In the case, the 4th Circuit, upheld the constitutionality of the Affordable Care Act's employer mandate and rejected free exercise, RFRA, Establishment Clause and equal protection challenges to various other provisions of the Act. Plaintiffs claimed that both the employer mandate and the individual mandate imposed support of abortions, and that certain religious exemptions in the statute violate the Establishment Clause. In the case, the 4th Circuit also refused to allow plaintiffs to belatedly add claims regarding the contraceptive coverage mandate.  (See prior posting.) [Thanks to SCOTUSblog for the lead.]

Nashville Diocese and Related Entities Sue Over Contraceptive Coverage Mandate

The Tennessean reports that last week the Catholic Diocese of Nashville and a number of its affiliated non-profit organizations filed suit in federal district court challenging the application to them of the federal government's Affordable Care Act contraceptive coverage mandate. Last year a similar suit by the Diocese was dismissed on standing and ripeness grounds. (AP). The new lawsuit is similar to those filed by other religious non-profits since the Obama administration's final rules creating a compromise solution for non-profits were adopted.

Supreme Court Grants Review In Two Contraceptive Coverage Mandate Cases

The U.S. Supreme Court today (11/26/2013) granted certiorari in two cases challenging the Affordable Care Act contraceptive coverage mandate, and consolidated them for appeal allotting one hour for oral argument. (Order List.) The cases are Sebelius v. Hobby Lobby Stores, Inc, (Docket No. 13-354) and Conestoga Wood Specialties v. Sebelius, (Docket No. 13-356).

In the Hobby Lobby case, an 8-judge en banc panel of the 10th Circuit Court (in six separate opinions spanning 165 pages) held that two related family-owned corporate businesses had demonstrated a likelihood of success on their claim that their free exercise rights were substantially burdened in violation of RFRA.  The corporations and their Christian owners objected to providing coverage for those contraceptives they regard as abortifacients.  Five of the 8 judges held that corporations have free exercise rights. Four of the 8 judges also concluded that the individual shareholders have standing to assert claims as well. (See prior posting.) From Becket Fund, here is a link to all the pleadings and briefs in the case since its inception.

In Conestoga Wood Specialties, the 3rd Circuit in a 2-1 decision denied a preliminary injunction sought by a family-owned business which, along with its Mennonite owners, objected to providing coverage for contraceptive methods that may terminate a fertilized embryo. The majority opinion held that "for-profit, secular corporations cannot engage in religious exercise," and that the conscience rights of the owners of a corporation do not pass through to the corporation. (See prior posting.) By a 7-5 vote, the 3rd Circuit denied an en banc rehearing. (See prior posting.) From Becket Fund, here is a link to the prior opinions and Supreme Court filings in the case.

CNN has additional coverage of the Supreme Court's action.