Federal Agencies Provide Disclosure Guidance For Companies Relying On Hobby Lobby Decision

The Department of Labor on Thursday posted an addition to Frequently Asked Questions to provide post-Hobby Lobby ERISA guidance from relevant federal agencies. For closely-held companies that terminate contraceptive coverage mid-plan year in reliance on the Hobby Lobby decision:

if an ERISA plan excludes all or a subset of contraceptive services from coverage under its group health plan, the plan's SPD [Summary Plan Description] must describe the extent of the limitation or exclusion of coverage. For plans that reduce or eliminate coverage of contraceptive services after having provided such coverage, expedited disclosure requirements for material reductions in covered services or benefits apply... which generally require disclosure not later than 60 days after the date of adoption of a modification or change.... Other disclosure requirements may apply, for example, under State insurance law applicable to health insurance issuers.

Senate Democrats Propose Bill To Overrule Hobby Lobby Decision

On Wednesday, Senators Patty Murray and Mark Udall announced that they have introduced the "Protect Women's Health From Corporate Interference Act" (full text) (summary). The bill is designed to overrule the Supreme Court's recent Hobby Lobby decision by excluding Affordable Care Act requirements from the provisions of the Religious Freedom Restoration Act.  The bill provides in part:

(a) ... An employer that establishes or maintains a group health plan for its employees ... shall not deny coverage of a specific health care item or service with respect to such employees (or dependents) where the coverage of such item or service is required under any provision of Federal law or the regulations promulgated thereunder....

... Subsection (a) shall apply notwithstanding any other provision of Federal law, including Public Law 103–141 [Religious Freedom Restoration Act].

According to The Hill, the Senate Bill has 35 co-sponsors.

UPDATE: In a July 16 vote, the Senate failed to invoke cloture so it could move to consideration of the bill. The vote, largely along party lines, was 56-43.  Sixty votes are required to invoke cloture.

Non-Religious Non-Profit Sues To Challenge Contraceptive Coverage Mandate

In another permutation of the challenges to the Affordable Care Act contraceptive coverage mandate, a federal lawsuit was filed earlier this week by March for Life. The complaint (full text) in March for Life v. Burwell, (D DC, file 7/7/2014), alleges that while plaintiff is a non-profit pro-life organization that opposes providing certain contraceptive coverage to its employees, it does not qualify for the "accommodation" that permits an opt out in favor of coverage directly from the insurance company because March for Life does not hold itself out as a "religious organization." The complaint goes on to allege that the mandate violates the religious freedom rights of March for Life employees by requiring them to accept insurance plans that provide coverage for abortifacients. It also claims that the mandate violates its equal protection rights and the Administrative Procedure Act. ADF issued a press release on the case.

Supreme Court In Post-Term Order Enjoins Non-Profit Contraceptive Accommodation, Pending Appeal

It turns out that the U.S. Supreme Court was not completely finished with its work last Monday.  Yesterday it granted an injunction to a religiously-affiliated liberal arts college that objects to complying with the Affordable Care Act contraceptive coverage accommodation for religious non-profits.  Wheaton College, which was denied a preliminary injunction by an Illinois federal district court (see prior posting), applied to Justice Kagan for an emergency injunction pending appeal. Justice Kagan referred the application to the full court. In an order issued last Monday, separate from the full Order List for the day, the Court issued a temporary injunction and called for a response by Wednesday.  On Thursday in Wheaton College v. Burwell, (S.Ct., July 3, 2014), in an unsigned order the court held:

If the applicant informs the Secretary of Health and Human Services in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicant the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of appellate review. To meet the condition for injunction pending appeal, the applicant need not use the form prescribed by the Government, EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators....

[T]he applicant has already notified the Government—without using EBSA Form 700—that it meets the requirements for exemption from the contraceptive coverage requirement on religious grounds. Nothing in this order precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act.

In light of the foregoing, this order should not be construed as an expression of the Court’s views on the merits.

Justice Scalia noted that he concurs in the result. Justice Sotomayor, in a strongly worded dissent, Joined by Justices Ginsburg and Kagan, said in part:

[J]ust earlier this week in Burwell v. Hobby Lobby Stores, Inc., ... the Court described the accommodation as “a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all [Food and Drug Administration (FDA)]-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage.” ...  Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might ... retreats from that position. That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution....

... I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs. But thinking one’s religious beliefs are substantially burdened—no matter how sincere or genuine that belief may be—does not make it so.

The Washington Post and SCOTUS Blog both report on the Court's action.

District Court Grants Preliminary Injunction, Quoting Same-Day's SCOTUS Opinion In Hobby Lobby

In Archdiocese of St. Louis v. Burwell, (ED MO, June 30, 2014), a Missouri federal district court granted a preliminary injunction to Catholic non-profit organizations preventing enforcement of the contraceptive coverage mandate accommodation against them. The court rejected the government's argument that the religious-based organizations are not injured (and thus lack standing) because the government has no authority under ERISA to enforce against the third party administrator of a "church plan" the requirement that it furnish contraceptive coverage directly after the non-profit employer opts out. The court said:

Plaintiffs' injury is not related to whether the TPA can be penalized for noncompliance with the mandate. Rather, Plaintiffs' injury arises when the provision of contraceptive coverage has been facilitated by their actions and their beliefs have thereby been violated. This constitutes a sufficient injury to satisfy the constitutional minimum of standing.

The court went on to conclude that the requirement for non-profits to execute a certification to opt out of the mandate imposes a substantial burden on their religious exercise. Then, incorporating language from the Supreme Court's Hobby Lobby opinion decided earlier the same day on which this court's opinion was filed, the court concluded that the government has shown it has a compelling interest, but  it has not shown that it has used the least restrictive means to accomplish its goal. The court said in part:

Indeed, the Supreme Court has observed that the most straightforward way for the Government to achieve its goal without imposing a substantial burden on the exercise of religion would be to assume the cost of providing contraceptives to any women unable to obtain them under their health insurance policies due to their employers' religious objections. Burwell [v. Hobby Lobby Stores, Inc.], --S.Ct.--, 2014 WL 2921709.

The Archdiocese of St. Louis issued a press release welcoming the decision.

Supreme Court Cleans Up Docket After Hobby Lobby Decision

Today the U.S. Supreme Court did a clean-up of pending Affordable Care Act contraceptive mandate cases brought by for-profit companies now that the Court has handed down its decision in Hobby Lobby. The Court denied certiorari in cases: Department of Health and Human Services v. Gilardi, (Docket No. 13-915); Burwell v. Newland (Docket No. 13-919); and Burwell v. Korte (Docket No. 13-937). In three other pending petitions for review the Supreme Court granted certiorari and summarily vacated the Court of Appeals decisions, remanding each case to the Court of Appeals for further consideration in light of Hobby Lobby.  The cases are: Autocam Corp. v. Burwell, (Docket No. 13-482); Gilardi v. Department of Health and Human Services, (Docket No. 13-567); Eden Foods, Inc. v. Burwell, (Docket No. 13-591). All of these actions are noted in today's Order List.)

10th and 11th Circuits Grant Injunction Pending Appeal To Religious Non-Profits Challenging ACA Rules

Yesterday two circuit courts of appeal granted stays pending appeal in suits by religious non-profits challenging the Affordable Care Act contraceptive coverage accommodation. In Diocese of Cheyenne v. Burwell, (10th Cir., June 30, 2014), the 10th Circuit Court of Appeals held that it would enjoin enforcement of the accommodation against several Wyoming Catholic charitable and educational institutions so long as they inform the Secretary of Health and Human Services in writing (but not necessarily using the government's form) that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services.

In Eternal World Television Network, Inc. v. Secretary, U.S. Department of Health and Human Services, (11th Cir., June 30, 2014), the U.S. 11th Circuit Court of Appeals granted an injunction pending appeal to a religious non-profit broadcasting network challenging the contraceptive mandate accommodation rules. Judge Pryor wrote a 26-page special concurrence explaining why EWTN is likely to succeed on the merits. Both the court's order and Judge Pryor's opinion cited yesterday's Supreme Court decision in Hobby Lobby for support. [Thanks to Stephen Blakeman for the lead.]

White House Reacts To Hobby Lobby Decision

At a press briefing yesterday (transcript), White House Press Secretary Josh Earnest set out president Obama's reaction to the Supreme Court's Hobby Lobby decision, saying in part:

The Supreme Court ruled today that some bosses can now withhold contraceptive care from their employees’ health coverage based on their own religious views that their employees may not even share.  President Obama believes that women should make personal health care decisions for themselves rather than their bosses deciding for them.

Today’s decision jeopardizes the health of women who are employed by these companies.  As millions of women know firsthand, contraception is often vital to their health and well being.  That’s why the Affordable Care Act ensures that women have coverage for contraceptive care, along with other preventative care like vaccines and cancer screenings.

We will work with Congress to make sure that any women affected by this decision will still have the same coverage of vital health services as everyone else.

President Obama believes strongly in the freedom of religion.  That’s why we’ve taken steps to ensure that no religious institution will have to pay or provide for contraceptive coverage.  We’ve also made accommodations for non-profit religious organizations that object to contraception on religious grounds.  But we believe that the owners of for-profit companies should not be allowed to assert their personal religious views to deny their employees federally mandated benefits.

Some Preliminary Thoughts On Today's Hobby Lobby Decision

The Supreme Court's Hobby Lobby opinions handed down today could (and not doubt will) spawn hundreds of pages of scrutiny and analysis.  In this post I offer only some very preliminary reactions, but ones which I hope will be useful starting points for others in analyzing the decisions at greater length.

(1) One of the most widely discussed questions raised by Hobby Lobby has been: Can corporations exercise religion? Justice Alito avoids many of the difficulties posed by this question through adopting the "nexus of contracts" view of corporations put forward by "law and economics" scholars during the past 40 years.  He says:

A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.... [P]rotecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.

This approach avoids both the question of whether an "artificial person" can exercise religion, and whether traditional "piercing-the-corporate-veil" notions need to be invoked.

(2) Much attention has been focused on whether the government can show a "compelling interest" in imposing the contraceptive coverage mandate.  Again Justice Alito is able to avoid dealing directly with the issue. By focusing instead on the "least restrictive means" prong of RFRA strict scrutiny, he is able merely to "assume" that the government has a compelling interest, without deciding the issue.

(3) Justice Alito's "least restrictive means" discussion  creates some of the most important surprises, and may lead those who supported Hobby Lobby's position to recall the adage: "be careful what you wish for."  Jutice Alito makes two points. First, he argues that the "most straightforward" less restrictive alternative would be for the government to assume the cost of furnishing contraceptive coverage. The logical extension of this argument seems to be that if numerous other religious objections to providing employer coverage arise, the best alternative may be a single-payer government-run system.

Second, Justice Alito heaps praise on the less restrictive alternative that the government has already developed for religious non-profits, and suggests that this may be the most feasible alternative here as well.  However, as Justice Alito briefly references in a footnote, an equally fierce battle against just that alternative is working its way through dozens of lower federal courts.  Seldom has the Supreme Court so tipped its hand on its views about cases about to come to it.  Dozens of religious non-profits are arguing that opting out of furnishing contraceptive coverage, and thereby triggering coverage from elsewhere, still amounts to religiously objectionable participation.  For-profit corporations with religious beliefs seemingly have the same free-exercise concerns. The majority must think those concerns are not justified.

Supreme Court Rules RFRA Allows Closely-Held Corporations To Refuse Contraceptive Coverage

In Burwell v. Hobby Lobby Stores, Inc., (S.Ct., June 30, 2014), the U.S. Supreme Court today ruled in favor of Hobby Lobby and other closely held corporations whose owners object on religious grounds to providing coverage for contraceptive services. In a majority opinion by Justice Alito, the court held that the Religious Freedom Restoration Act applies to closely-held corporations, and that the government has not shown that the mandate is the least restrictive means of furthering its presumably compelling interest in guraranteeing cost-free access to the four contraceptive methods to which the companies object. Justice Alito said in part:

In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious nonprofit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.

Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful.

Justice Alito argues that the majority opinion is narrow:

We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”

He says that if the same accommodation given to religious non-profits were extended to closely-held corporations, the effect on women "would be precisely zero."

Justice Kennedy filed a concurring opinion as well as joining Justice Alito's majority opinion. Justices Ginsburg, Breyer, Sotomayor and Kagan dissented in two related dissenting opinions.

Justice Ginsburg's dissenting opinion calls the majority's decision one of "startling breadth." She adds in a section of her dissent joined only by Justice Sotomayor: "Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private."

Additional analysis of the decision will follow in separate posts.

Supreme Court Will Decide Much-Watched Hobby Lobby Case Today

This morning the U.S. Supreme Court will hand down the much-awaited decisions in Burwell v. Hobby Lobby Stores  and Conestoga Wood Specialties Corp. v. Burwell. These challenges to the Affordable Care Act contraceptive coverage mandate raise a number of difficult and interesting religious liberty questions. Here are SCOTUS Blog's resource pages on Hobby Lobby and Conestoga. Also SCOTUS Blog will be live blogging from the courtroom here. The opinions in the cases will be posted here by the Supreme Court as soon as they are announced. Religion Clause will be reporting on the decisions and their implications, probably with a rolling post or with several posts during the day and beyond.

District Court Denies Injunction Against ACA Non-Profit Rules; 3rd Circuit Issues Temporary Stay

In Catholic Charities of the Archdiocese of Philadelphia v. Burwell, (ED PA, June 27, 2014), a Pennsylvania federal district court denied a preliminary injunction to several Catholic charitable organizations that object to the Affordable Care Act rules providing for execution of an opt-out form in order to avoid the requirement to cover contraceptive services under their self-insured health care plan. (Full text of complaint.) After a non-profit opts out, ERISA requires the third party administrator to directly cover contraceptive services. The court concluded that plaintiffs had not shown a likelihood of success on the merits because the government may not be able to enforce the ERISA requirement against the "church plan" at issue. Even if that is not the case, the court found that the self-certification form is not what triggers the furnishing of contraceptive services by the third-party administrator.

Plaintiffs quickly filed a motion for a stay pending appeal, and the 3rd Circuit issued an order (full text) temporarily granting the stay, but requiring the parties to file responses addressing the impact of the Supreme Court's Hobby Lobby and Conestoga decisions (to be handed down Monday) on the issues presented. The Philadelphia Inquirer reports on the decision.

Christian College Denied Relief Against Contraceptive Coverage Mandate Accommodation

In Wheaton College v. Burwell, (ND IL, June 23, 2014), an Illinois federal district court refused to grant a preliminary injunction to a Christian liberal arts college that objects to complying with the Affordable Care Act contraceptive coverage mandate accommodation for religious non-profits.  It concluded that the 7th Circuit's decision in University of Notre Dame v. Sebelius (see prior posting) is controlling on it:

Because the majority opinion in Notre Dame stands squarely in the path of the principal relief that Plaintiff seeks, Plaintiff cannot demonstrate the requisite likelihood of success on the merits of its claims.

The court added however that if the Supreme Court's upcoming decision in Hobby Lobby calls into question any material aspect of the Notre Dame decision, any party may file a motion for reconsideration.

Another Diocese's Charities Get Preliminary Injunction Against Contraceptive Mandate Compromise

In Brandt v. Burwell, (WD PA, June 20, 2014), a Pennsylvania federal district court granted a preliminary injunction against applying the Affordable Care Act contraceptive coverage accommodation to charitable and educational affiliates of the Greensburg, Pennsylvania diocese.  The court found that the accommodation imposes a substantial burden on free exercise in violation of the Religious Freedom Restoration Act.  In doing so, the court relied on its earlier decisions on the same issue in Persico v. Sebelius (see prior posting) and Zubik v. Sebelius (see prior posting). The Legal Intelligencer reports on the decision.

Christian College Wins Preliminary Injunction Against ACA Contraceptive Coverage Mandate

In Colorado Christian University v. Sebelius, (D CO, June 20, 2014), a Colorado federal district court granted a preliminary injunction preventing enforcement against a Christian liberal arts university of the Affordable Care Act contraception  coverage mandate compromise as it applies to coverage for drugs, devices, or procedures that may destroy a human embryo or fertilized egg.  The court concluded that completion of the exemption form that results in coverage directly by the health plan's third-party administrator imposes a substantial burden on the school's religious exercise.  The court said in part:

Any myopic focus on the brevity of the Exemption Form and its ease of completion misses the mark. It is the de facto forced facilitation of the objectionable coverage that is religiously repugnant. The resultant moral abhorrence is not effectively extenuated by a transfer of responsibility via the Exemption Form from CCU to the TPA or another entity. Such legal legerdemain does not expiate the morally unacceptable means or end. Such a compelled concession by an ostensibly innocuous legal prophylactic does not ameliorate the ignominy of the moral obliquity created by the participation in the process.

Further, it is of no moment that ultimately the decision by an employee to elect the objectionable coverage is optional. It is the offer that is morally offensive regardless of the extent of its acceptance.

Becket Fund issued a press release announcing the decision.

District Court Upholds ACA Non-Profit Contraceptive Mandate Rules

In Eternal Word Television Network v. Burwell, (SD AL, June 17, 2014), an Alabama federal district court granted summary judgment to Department of Health and Human Services, rejecting a Catholic media network's challenges to the rules accommodating religious non-profits' objections to the Affordable Care Act contraceptive coverage mandate.  Rejecting EWTN's "substantial burden" argument under the Religious Freedom Restoration Act, the court said in part:

Legally (if not morally) speaking, there is a world of difference between a law that compels EWTN to provide contraceptive coverage directly and one in which the government places that burden on someone else after EWTN opts out. Because EWTN’s only religious objection to the mandate hinges upon the effect it will have on other parties after EWTN signs Form 700 rather than anything inherent to the act of signing and delivering Form 700 itself, the court finds that the mandate does not impose a substantial burden on EWTN’s religious practice within the meaning of RFRA. As a result, EWTN’s RFRA claim fails as a matter of law.

The court also rejected EWTN's free exercise, establishment clause and compelled speech claims.  It concluded that the mandate is a neutral law of general applicability, and that "the accommodation’s certification requirement does not compel EWTN to express any opinions or beliefs that it does not hold."

In a press release reacting to the decision, EWTN said it would file an immediate appeal to the 11th Circuit.

6th Circuit Upholds ACA Contraceptive Mandate Accommodation For Religious Non-Profits

In Michigan Catholic Conference v. Burwell, (6th Cir., June 11, 2014), the U.S. 6th Circuit Court of Appeals denied preliminary injunctions to several Catholic non-profit entities that object to the Affordable Care Act contraceptive coverage accommodation.  The accommodation allows charitable and educational non-profits to opt out of furnishing contraceptive coverage to their employees by completing a form and sending it to their insurer or third party administrator which will then furnishes contraceptive coverage directly. The court rejected arguments by the non-profits that the accommodation rules substantially burden their religious exercise under RFRA.  The court said in part:

appellants appear to ask the court to defer not only to their belief that requesting the exemption or the accommodation makes them complicit in sin, but also to defer to their understanding of how the regulatory measure actually works....  [W]e will independently determine what the regulatory provisions require and whether they impose a substantial burden on appellants’ exercise of religion....

Submitting the self-certification form to the insurance issuer or third-party administrator does not “trigger” contraceptive coverage; it is federal law that requires the insurance issuer or the third-party administrator to provide this coverage.... The government’s imposition of an independent obligation on a third party does not impose a substantial burden on the appellants’ exercise of religion.

The court also rejected plaintiffs' free speech, free exercise and Establishment Clause challenges. Finally the Court rejected plaintiffs' claim that the contraceptive coverage mandate violates the Weldon Amendment designed to allow health care entities to refuse to perform or cover abortions. Plaintiffs contend that certain of the contraceptive methods covered are abortifacients.  The Court refused to defer the plan provider's definition of abortion, saying:

the federal courts will utilize traditional methods of statutory interpretation to determine whether “abortion” in the Weldon Amendment includes FDA-approved emergency contraceptives.

The 6th Circuit also lifted its previously issued stays pending appeal of the lower courts' decisions in the case.  MLive reports on the decision.

Court Grants Preliminary Injunction To For-Profits and Non-Profits Challenging Required Contraceptive Coverage

In Catholic Benefits Association LCA v. Sebelius, (WD OK, June 4, 2014), an Oklahoma federal district court granted a preliminary injunction to prevent enforcement of the contraceptive coverage mandate against both non-profit and for-profit members of the Catholic Benefits Association, a third-party administrator of health insurance plans for Catholic employers. As to for-profit employers, the court was bound by the 10th Circuit's decision in Hobby Lobby.  Finding that the non-profit employers also suffered a substantial burden on their religious exercise by completing the opt-out form that results in contraceptive coverage directly from the third-party administrator, the court said in part:

the Court’s inquiry is focused upon how the plaintiffs themselves measure their degree of complicity in an immoral act, not whether a reasonable observer would consider the plaintiffs complicit in such an act....  Here, Plaintiffs sincerely believe that in executing the form and providing it to their issuers or TPAs, they play a central role in the provision of contraceptive services to their employees—something Plaintiffs find morally repugnant. This is where the Court’s inquiry ends, as it is not the Court’s role to say Plaintiffs’ religious beliefs are mistaken.

The court concluded, however, that as to the Archdioceses of Oklahoma City and of Baltimore, no substantial burden on religious exercise existed because they are totally exempt from the contraceptive coverage mandate. AP reports on the decision. (See prior related posting.)

In Modified Opinion, Court Dismisses Some Diocesan Contraceptive Coverage Claims

In Roman Catholic Archdiocese of Atlanta v. Sebelius, (ND GA, May 30, 2014), a Georgia federal district court in part granted the government's motion to reconsider its March 26 decision.  That decision, invoking RFRA, had  permanently enjoined the government from requiring Catholic Education of North Georgia and Atlanta Catholic Charities to comply with the self-certification requirements to opt out of contraceptive coverage.  In that decision, the court refused on mootness grounds to grant summary judgment to the Atlanta Archdiocese and the Savannah Diocese because they are totally exempt from the contraceptive coverage mandate.  In its May 30 opinion, the court completely dismissed these claims by the Diocesan plaintiffs, as well as dismissing the non-RFRA claims by all the plaintiffs.  The court however refused to reconsider its conclusion that the health plans involved are "church plans" under ERISA.

Government Says There Is No Controversy In Unusual Contraceptive Mandate Case

An unusual lawsuit involving the Affordable Care Act contraceptive coverage mandate was filed in April by Media Research Center (MRC) with little notice given to it, at least until a May 15 press release. MRC is the parent of CNSNews. In dozens of other cases, religious non-profits have sued objecting to the requirement that they complete the self-certification form to opt out that will lead to contraceptive coverage being furnished directly by the insurer or third-party administrator. The complaint (full text) in Media Research Center v. Sebelius, (ED VA, April 11, 2014), on the other hand, alleges that plaintiff has filed the self-certification form and has sought assurance from the government that it qualifies as an "eligible organization" entitled to avail itself of the opt out. It alleges that the government has refused to provide such assurance, and asks the court to issue a declaratory judgment that Media Research Center is an "eligible organization".

Then in a second count, it seeks an injunction against enforcement of the mandate and a declaratory judgement that the regulations allowing religious non-profits to opt out violates the Establishment Clause:

89. Determining which entities qualify as "religious employers" or "eligible organizations" requires the Government to determine (1) whether the organization truly seeks to inculcate "religious values," (2) whether an objection to the Contraception Mandate is truly "religious", and (3) whether an entity truly holds itself out as a "religious" organization.

90. The Contraception Mandate thus makes the Government the arbiter of which organizations are, or are not, sufficiently "religious" to qualify for exceptions to the Contraception mandate.

91. This entails an unconstitutionally invasive inquiry into an organization's religious purpose, beliefs, and practices.

92. Furthermore, the regulations are framed to value the activities of traditional religious groups (e.g, churches, ministries, and proselytizing organizations) more highly than non-traditional religious organizations (like MRC, which defends traditional American Judeo-Christian beliefs by exposing the hypocrisies and fallacies of media attacks on those beliefs).

The government in its Memorandum In Opposition (May 23, 2014) (full text) argues that there is no controversy present:

There is no dispute that MRC has determined that it is eligible for an accommodation and has executed the self-certification. There is also no dispute that MRC has now done everything that the regulations require in order to avail itself of an accommodation. Defendants have not disputed MRC’s status as an eligible organization, and have not suggested that they have any intent or reason to do so in the future. In fact, there is no dispute of any kind relevant to the instant motion....

Qualification for an accommodation depends on a self-certification—it does not require the government to make any determination at all. Nothing in the regulations or elsewhere suggests that defendants will undertake any sort of inquiry regarding MRC’s determination. Indeed, defendants refused to make a definitive pronouncement on MRC’s eligibility for an accommodation in this case because the government cannot possibly be in the business of making the type of individualized determination that MRC seeks for every potentially eligible organization. To agree to do so here would be to open the floodgates for such requests, which could quickly overwhelm defendants’ resources.