Federal Court Says Contraceptive Coverage Accommodation For Religious Non-Profits Likely Violates RFRA As Non-Profit Suits Keep Being Filed

Yesterday a Pennsylvania federal district court became the first to weigh in on the merits of the accommodation provided for religious non-profit educational and charitable organizations that object to the Affordable Care Act contraceptive coverage mandate.  The court, finding a likelihood of success on the merits in plaintiffs' RFRA challenge to the final rules that were adopted in June, issued an expedited preliminary injunction.  In Zubik v. Sebelius, (WD PA, Nov. 21, 2013), the court said in part:

[A]lthough the “accommodation” legally enables Plaintiffs to avoid directly paying for the portion of the health plan that provides contraceptive products, services, and counseling, the “accommodation” requires them to shift the responsibility ... onto a secular source. The Court concludes that Plaintiffs have a sincerely-held belief that “shifting responsibility” does not absolve or exonerate them from the moral turpitude created by the “accommodation”; to the contrary, it still substantially burdens their sincerely-held religious beliefs.....

The application of these two regulations – one an exemption and one an accommodation – has the effect of dividing the Catholic Church into two separate entities. Now, one regulation (the “exemption”) applies to the worship arm of the Catholic Church and thus applies to all of those employees who work inside a church’s walls. While the other regulation (the “accommodation”) applies to the “good works” arms of the Catholic Church, and thus applies to those who stand on the church steps and pass out food and clothes to the needy.... [B]y dividing the Catholic Church in such a manner ..., the Government has created a substantial burden on Plaintiffs’ right to freely exercise their religious beliefs.

The court went on to hold that the exemption for churches themselves "is an acknowledgment of the lack of a compelling governmental interest" at least as to some employers. It then reasoned:

If the Court were to conclude that the Government’s stated interests were sufficiently “compelling” to outweigh the legitimate claims raised by the nonprofit, religious affiliated/related Plaintiffs, the net effect ... would be to allow the Government to cleave the Catholic Church into two parts: worship, and service and “good works,” thereby entangling the Government in deciding what comprises “religion.”

Pittsburgh Post-Gazette reports on the decision. [Thanks to Luke Goodrich for the lead.]

Meanwhile, another religious non-profit whose challenge originally posed ripeness problems (see prior posting)  has filed a new lawsuit challenging the contraceptive coverage mandate. The case is Belmont Abbey College v. Sebelius,(D DC, filed 11/20/2013) (full text of complaint; press release from Becket Fund).