Organization Did Not Show That Its Anti-Abortion Views Are Religious Beliefs

In Oregon Right to Life v. Stolfi, (D OR, Sept. 30, 2024), an Oregon federal district court refused to issue a preliminary injunction against Oregon's requiring Oregon Right to Life to cover abortion and certain contraceptives in its employee health plan. The organization asserted a 1st Amendment free exercise claim.  The court said in part:

... Plaintiff is not affiliated with any religious practice or institution and does not have any religious requirement for being an employee or director.  The “specific purpose” and “personal life perspectives” that Plaintiff’s directors are required to subscribe to is free of any religious elements, requiring only that they subscribe to a belief in the importance of human life and oppose abortion, euthanasia, assisted suicide, and “life-destroying research.”  As noted, Plaintiff has over 25,000 members, who are not required to subscribe to any religious belief and are responsible for electing two members of Plaintiff’s board of directors.  Other than a fleeting reference to “Judeo-Christian ethics,” there is nothing in the articles of incorporation that would suggest any religious element in Plaintiff’s organization.   

There are many reasons why an individual or entity might oppose abortion and contraception, which range from deeply held religious conviction to the purely philosophical.  Plaintiff asserts in this litigation that its reasons, as an organization, are religious, but that assertion is not fully supported by the record.  It is not necessary for the Court, at this early stage of the case, to conclusively resolve whether Plaintiff’s beliefs are, in Plaintiff’s own scheme of things, religious.  But the Court’s review of Plaintiff’s organizational documents and requirements for membership, employment, and leadership cast doubt on whether Plaintiff’s opposition is genuinely religious in nature.  This doubt undermines Plaintiff’s showing of likely success on the merits.  

Defendant also challenges whether Plaintiff actually holds the beliefs professed in the Complaint.  As noted, a major aspect of Plaintiff’s objection the RHEA mandate is the provision of certain forms of contraception.  Plaintiff has maintained a health benefit plan through Providence Health Plans since 2015, years prior to the passage of the RHEA, and now objects that Providence Health Plans is not acceptable to them because it covers challenged forms of contraception.  The fact that Plaintiff maintained benefits through Providence Health Plans prior to the passage of the RHEA, despite its provisions concerning contraception, likewise casts doubt on Plaintiff’s claim.

HHS Proposes Repeal of Exemption from Contraceptive Mandate for Entities with Nonreligious Moral Objections

 Yesterday, the Department of Health and Human Services along with several other federal agencies filed a 147-page release (full text) proposing rule changes to the Trump Administration's exemptive rules under the Affordable Care Act for employers and universities with objections to furnishing employees and students coverage for contraceptive services. The proposed rule changes would eliminate the current exemption for employers and schools that have moral, as opposed to religious objections. The new rules would retain the exemption for employers and universities with religious objections.  However, under new arrangements, their employees and students could, in addition to existing options, obtain contraceptive services through an individual contraceptive arrangement with another provider, and without any involvement on the part of the employer or university with religious objections. The Center for Medicare and Medicaid Services issued a press release explaining the proposed rules, and CNN reports on the proposals.

FDA Approves Label Change for Plan B Emergency Contraceptive: Not an Abortifacient

The U.S. Food and Drug Administration announced on Friday that it has approved a labeling change for the emergency contraceptive Plan B One-Step, sometimes known as the morning-after pill.  The labeling change states clearly that the medication is not an abortifacient.  The FDA says in part:

Plan B One-Step will not work if a person is already pregnant, meaning it will not affect an existing pregnancy. Plan B One-Step prevents pregnancy by acting on ovulation, which occurs well before implantation. Evidence does not support that the drug affects implantation or maintenance of a pregnancy after implantation, therefore it does not terminate a pregnancy.

The original label had been required to say in part: "this product works mainly by preventing ovulation (egg release). It may also prevent fertilization of a released egg (joining of sperm and egg) or attachment of a fertilized egg to the uterus (implantation)."

The FDA supports its conclusion that it does not affect implantation with a detailed Decisional Memorandum discussing more recent studies of the drug.

In the extensive litigation challenging rules under the Affordable Care Act that mandated health insurance policies cover contraceptive methods for women, religious objectors had pointed to Plan B as one of the medications that they considered an abortifacient because it could prevent implantation of a fertilized egg.  Also, since the Supreme Court's Dobbs case, abortion bans in some states might possibly be broad enough to cover medication that prevents implantation.

In a 2015 Memorandum, relying on research available at that time, the Catholic Medical Association rejected the use of Plan B even after a rape. AP reports on the FDA's approval of the labeling change.

HRSA Wrongly Eliminated Required Insurance Coverage For Natural Family Planning Methods

 In Tice-Harouff v. Johnson, (ED TX, Aug. 12, 2022), a Texas federal district court held that changes in the language of federal regulations specifying the required cost-free contraceptive coverage by qualified health plans eliminated coverage for fertility-awareness based methods. These natural family planning methods are used, among others, by women with religious objections to use of contraceptives. The court held that the Health Resources and Services Administration violated the Notice and Comment requirement of the Administrative Procedure Act in adopting the amendments and that the amendments were arbitrary and capricious. The court rejected the government's claim that the change in language had not eliminated coverage for such methods. ADF issued a press release announcing the decision.

Court Dismisses Challenge To Contraceptive Mandate Exemption for Notre Dame

In Irish 4 Reproductive Health v. U.S. Department of Health and Human Services, (ND IN, Aug. 12, 2021), an Indiana federal district court dismissed a suit challenging rules, as well as a settlement agreement, exempting Notre Dame University from the contraceptive coverage mandate of the Affordable Care Act. The court said in part:

With the Rules having been upheld by the Supreme Court, I can’t really say that the Settlement Agreement itself is causing injury to the Plaintiffs because the same result the Settlement Agreement provides Notre Dame (exempting it from the contraceptive coverage mandate) is equally provided by the Rules (the validity of which were upheld). The challenge to the Settlement Agreement “is not ripe for adjudication [because] it rests upon contingent future events that may not occur” - i.e., the speculative possibility that the exemption might be invalidated at some point in the future.

The court, relying on the Supreme Court's Little Sisters of the Poor decision and a Massachusetts federal district court case, also held that the rules creating religious exemptions from the contraceptive coverage mandate do not violate the Establishment Clause.

Expanded Contraceptive Mandate Exemptions Again Upheld

Last July in Little Sisters of the Poor v. Pennsylvania, the U.S. Supreme Court rejected two kinds of challenges to the Trump Administration's expanded conscience exemptions from the Affordable Care Act's contraceptive coverage mandate. the Court held that the relevant federal departments had authority to promulgate the rules, and that the procedural process used to adopt the rules was valid. The case was remanded for consideration of any other issues. (See prior posting.) Now in Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, (D MA, Jan. 15, 2021), a Massachusetts federal district court on remand held that the expanded exemptions are not arbitrary and capricious, and do not violate either the Establishment Clause or the Equal Protection guarantee of the 5th Amendment. In rejecting the Establishment Clause challenge, the court said in part:

Permitting entities to practice their beliefs as they would in the absence of the relevant government-imposed regulations does not, in this instance, rise to an unconstitutional violation of the Establishment Clause.

Supreme Court GVR's 3 Challenges To Contraceptive Mandate Exemptions

Today the U.S. Supreme Court summarily granted certiorari, vacated the judgment below and remanded to the U.S. 9th Circuit Court of Appeals three cases involving challenges to the Trump Administration's broadened contraceptive mandate exemptions.  The Court remanded for further consideration in light of its decision yesterday in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania. The cases involved in today's GVR Order are Department of Health and Human Services v. California (Docket No. 19-1038), March for Life Education v. California (Docket No. 19-1040), and Little Sisters of the Poor v. California (Docket No. 19-1053). (Order List).

Supreme Court Upholds Expanded Exemptions From ACA Contraceptive Coverage Mandate

In a 7-2 decision in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, (Sup. Ct., July 8, 2020), the U.S. Supreme Court rejected challenges to the Trump Administration's expanded exemptions from the Affordable Care Act contraceptive coverage mandate.  The challenged rules allowed employers with religious exemptions and most employers with moral objections to opt out of furnishing coverage. Justice Thomas' majority opinion, joined by Chief Justice Roberts and Justices Alito, Gorsuch and Kavanaugh held that the ACA gives the relevant federal departments authority to provide these exemptions from the contraceptive mandate. It went on:

The Departments also contend, consistent with the reasoning in the 2017 IFR and the 2018 final rule establishing the religious exemption, that RFRA  independently compelled the Departments’ solution or that it at least authorized it.  In light of our holding that the ACA provided a basis for both exemptions, we need not reach these arguments. We do, however, address respondents’ argument that the Departments could not even consider RFRA as they formulated the religious exemption from the contraceptive mandate. Particularly in the context of these cases, it was appropriate for the Departments to consider RFRA.

The Court also rejects challenges to the procedural process used to adopt the rules-- including the claim that the Departments did not maintain an open mind in considering comments on the rules before their adoption in final form, saying in part:

We decline to evaluate the final rules under the open-mindedness test. We have repeatedly stated that the text of the APA provides the “‘maximum procedural requirements’” that an agency must follow in order to promulgate a rule.

Justice Alito, joined by Justice Gorsuch, filed a concurring opinion, saying in part:

I would hold not only that it was appropriate for the Departments to consider RFRA, but also that the Departments were required by RFRA to create the religious exemption (or something very close to it). I would bring the Little Sisters’ legal odyssey to an end.

Justice Kagan, joined by Justice Breyer, concurred in the judgment, filing an opinion agreeing that the Departments had statutory authority to differentiate among health plans, but concluding that petitioner's challenge that the Departments' actions were arbitrary and capricious remain open upon remand:

That issue is now ready for resolution, unaffected by today’s decision.  An agency acting within its sphere of delegated authority can of course flunk the test of “reasoned decision making.”... The agency does so when it has not given “a satisfactory explanation for its action” .... Assessed against that standard of reasonableness, the exemptions ... give every appearance of coming up short.

Justice Ginsburg filed a dissenting opinion, joined by Justice Sotomayor, saying in part:

In accommodating claims of religious freedom, this Court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs.... Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.

CNN reports on the decision.

Church Lacks Standing To Challenge State's Insurance Coverage Mandate

In Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (WD WA, May 6, 2020), a Washington federal district court refused to grant a preliminary injunction to a church that objects to Washington's SB 6219 which requires all health insurance plans to cover all FDA-approved contraceptive products. The court concluded that the church lacks standing to pursue the claim, saying in part:

Cedar Park has failed to establish that any injury is fairly traceable to SB 6219. When Cedar Park needed to renew its health insurance plan on September 1, 2019, there was no product in the marketplace that complied with Cedar Park’s preferred requirements. Cedar Park has failed to establish that this absence of a product was because of SB 6219. In fact, Cedar Park’s previous plan did not conform to its beliefs despite SB 6219 not having legal effect when Cedar Park purchased that plan. Now, Providence offers what appears to be an acceptable product despite the continued applicability of SB 6219. Thus, Cedar Park has failed to establish an injury or an injury that is fairly traceable to SB 6219.

Supreme Court Will Broadcast Contraceptive Mandate Case Arguments Today In Real Time

Beginning at 10:00 am (EDT) this morning, the U.S. Supreme Court will hear consolidated oral arguments in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania  (SCOTUSblog case page) and Trump v. Pennsylvania (SCOTUSblog case page). In the case, the 3rd Circuit upheld a nationwide preliminary injunction against enforcement of the Trump Administration's final rules expanding exemptions under the Affordable Care Act for employers with religious or moral objections to contraceptive coverage. Little Sisters of the Poor were intervenors in the 3rd Circuit case. (See prior posting.)  Under the Supreme Court's special procedures for arguments during the COVID-19 crisis, arguments will be conducted via teleconference which will be broadcast live by C-Span at this link.

Claims Against Notre Dame and Feds Over Contraceptive Coverage Move Ahead

Irish 4 Reproductive Health v. U.S. Department of Health and Human Services, (ND IN, Jan. 16, 2020), is the latest installment in the dispute over the extent to which Notre Dame University must provide contraceptive coverage in its health insurance plans for employees and students. As described by the Indiana federal district court:

There are really two separate disputes at play here. The first involves a challenge to regulations that would allow Notre Dame to declare itself exempt from the Women’s Health Amendment of the Patient Protection and Affordable Care Act (“ACA”)....

The second part of this case presents a [new] wrinkle.... [A] week after issuing the interim final rules..., the Federal Defendants executed a private settlement agreement with Notre Dame exempting the university from all existing and future requirements with respect to contraceptive coverage. Notre Dame did not seek input from its students or faculty before entering into the settlement agreement. The Plaintiffs in this case — Irish 4 Reproductive Health (an association of Notre Dame students), Natasha Reifenberg, and Jane Does 1-3 — claim this backroom deal is illegal and unconstitutional. 

The court refused to dismiss plaintiffs' claims that the settlement agreement and the exemptive rules violate the Administrative Procedure Act and the Establishment Clause of the 1st Amendment. However the court did dismiss due process and equal protection challenges. (See prior related posting.)

Supreme Court Grants Review In Contraceptive Mandate Exemption Case

The U.S. Supreme Court today granted review in Little Sisters of the Poor v. Pennsylvania (Docket No. 19-431) and Trump, President of the U.S. v. Pennsylvania (Docket No. 19-454) (certiorari granted 1/17/2020). (Order List).The two cases were consolidated for oral argument. In the case, the U.S. 3rd Circuit Court of Appeals affirmed a district court's entry of a nationwide preliminary injunction against enforcement of the Trump Administration's final rules expanding the scope of the exemptions under the Affordable Care Act for employers having religious or moral objections to contraceptive coverage. (See prior posting). Little Sisters of the Poor were intervenors in the 3rd Circuit case. (See prior posting.)

Cert. Filed By Little Sisters of the Poor Over Contraceptive Mandate Exemption

A petition for certiorari (full text) was filed yesterday, captioned Little Sisters of the Poor Saints Peter and Paul Home v. Commonwealth of Pennsylvania, (U.S. Sup. Ct., filed 10/1/2019). The petition seeks review of the 3rd Circuit's decision in Commonwealth of Pennsylvania v. President of the United States of America which affirmed a district court's entry of a nationwide preliminary injunction against enforcement of the Trump Administration's final rules expanding the scope of the exemptions under the Affordable Care Act for employers having religious or moral objections to contraceptive coverage. (See prior posting.) Little Sisters of the Poor who are seeking Supreme Court review were intervenors in the 3rd Circuit case. (See prior posting.) The petition for review sets out the questions presented:

1. Whether a litigant who is directly protected by an administrative rule and has been allowed to intervene to defend it lacks standing to appeal a decision invalidating the rule if the litigant is also protected by an injunction from a different court?

2. Whether the federal government lawfully exempted religious objectors from the regulatory requirement to provide health plans that include contraceptive coverage?

Becket issued a press release announcing the filing of the cert. petition.

Preliminary Injunction Denied In Challenge To Conscience Provisions In Insurance Law

In Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (WD WA, Aug. 2, 2019), a Washington federal district court denied a preliminary injunction against a group of Washington state provisions that plaintiff claims requires it to pay for abortifacient contraceptive coverage for individuals in its health insurance plan. At issue is an Attorney General's Opinion that says the insurance commissioner may require insurance companies to to include the cost of prescription contraceptives in the rate setting actuarial analysis where an employer raises a conscientious objection to paying these costs directly as a part of it benefit package. The court found that plaintiff lacks standing to assert the claim at this point because:

Cedar Park has not provided evidence that insurance costs are in fact calculated or charged in a manner to which it has a religious objection...

The court also dismissed on ripeness grounds, saying that plaintiff "cites no communications from or statements of the State which could form the basis of Cedar Park’s belief that it will be subject to enforcement..." The court however allowed plaintiff to file an amended complaint contending that it is treated less favorably than religious organizations which are health care providers, carriers, and facilities.

Conservatives Oppose Trump's 5th Circuit Nominee Because of His Contraceptive Mandate Decision

The Washington Times yesterday reported that federal district court judge Halil Suleyman Ozerden, who has been nominated by President Trump for a seat on the U.S. 5th Circuit Court of Appeals is facing opposition from some Republican members of the Senate Judiciary Committee. They have questioned Ozerden's record on religious liberty because of an opinion he wrote in 2012 in Catholic Diocese of Biloxi, Inc. v. Sebelius, (SD MS, Dec. 20, 2012). In that case he dismissed on ripeness grounds a Catholic diocese's challenge to the Affordable Care Act contraceptive coverage mandate.  Conservative advocacy groups such as the American Family Association and the First Liberty Institute are opposing his selection.

3rd Circuit Affirms Injunction Against Expanded Contraceptive Mandate Exemptions

In Commonwealth of Pennsylvania v. President United States of America, (3d Cir., July 12, 2019), the U.S. 3rd Circuit Court of Appeals affirmed a district court's entry of a nationwide preliminary injunction against enforcement of the Trump Administration's final rules expanding the scope of the exemptions under the Affordable Care Act for employers having religious or moral objections to contraceptive coverage. The court said in part that the agencies involved lacked good cause to dispense with the notice and comment requirements in promulgating the Interim Final Rules expanding the exemptions, and the use of the notice and comment procedure to finalize the rules did not cure the defect.  The court also said:

The Agencies’ effort to cast RFRA as requiring the Religious Exemption is also incorrect. Even assuming that RFRA provides statutory authority for the Agencies to issue regulations to address religious burdens the Contraceptive Mandate may impose on certain individuals, RFRA does not require the enactment of the Religious Exemption to address this burden....

RFRA does not require the broad exemption embodied in the Final Rule nor to make voluntary a notice of the employer’s decision not to provide such coverage to avoid burdening those beliefs.

The Hill reports on the decision and says that an appeal to the Supreme Court is likely.

Certiorari Denied In Contraceptive Mandate Case

The U.S. Supreme Court today denied review in Little Sisters of the Poor v. California, (Docket No. 18-1192, certiorari denied 6/17/2019). (Order List).  In the case, the U.S. 9th Circuit Court of Appeals in a 2-1 decision affirmed in part a preliminary injunction issued by a California federal district court against enforcement of the Trump Administration's Interim Final Rules expanding religious and moral exemptions to the Affordable Care Act Contraceptive Coverage Mandate. (See prior posting.) The Interim Rules have now been replaced by Final Rules. (See prior posting.)

3rd Circuit Hears Arguments In Contraceptive Mandate Case

Yesterday the U.S. 3rd Circuit Court of Appeals heard oral arguments (audio of full arguments) in Commonwealth of Pennsylvania v. President of the United States. In the case, a Pennsylvania federal district court granted a nationwide preliminary injunction  against enforcement of the Interim Final Rules issued by the Trump Administration that expanded exemptions from the Affordable Care Act's contraceptive coverage mandate for those with religious or moral objections. (See prior posting.) Courthouse News Service reports on the oral arguments.

Court Enjoins Obama-Era Contraceptive Mandate Accommodation

In Dobson v. Azar, (D CO, March 26, 2019), a Colorado federal district court reopened proceedings in a case challenging Obama-era Affordable Care Act accommodation for religious non-profits and granted a permanent injunction against their enforcement to the extent they require insurance coverage for drugs or procedures "that may destroy a human embryo or fertilized egg of a mother either before or after the implantation of a fertilized egg in the uterus of its mother." The suit by James Dobson and Family Talk was one of a large number of challenges to regulations that required religious non-profits that wished to opt out of the mandate for contraceptive coverage to complete an exemption form that had the effect of triggering coverage directly from the organization's insurer. The Trump administration promulgated Interim Final Rules creating a broader exemption. However multiple lawsuits have been filed challenging this broader exemption and two courts have issued preliminary injunctions against their enforcement.  The court concluded:

Given the uncertainty presented by the legal challenges to the IFR, I find and conclude that a permanent injunction is proper.

Colorado Springs Gazette reports on the decision.

Court Enjoins Broadened Contraceptive Mandate Exemptions

Yesterday in Commonwealth of Pennsylvania v. Trump, (ED PA, Jan 14, 2019), a Pennsylvania federal district court issued a nationwide preliminary injunction preventing enforcement of the Trump Administration's expanded exemptions for those asserting religious or moral objections to the Affordable Care Act's contraceptive coverage mandate.  In addition to finding procedural problems in the way the rules were adopted, the court concluded:

The Final Rules—just as the IFRs before them—exceed the scope of the Agencies’ authority under the ACA, and, further, cannot be justified under RFRA.

A California court issued a similar, but more limited injunction on Sunday. (See prior posting.) Washington Examiner reports on the decision.