Supreme Court "Punts" On Contraceptive Mandate Case

The U.S. Supreme Court today took the unusual step of sending the controversial dispute over the Obama administration's contraceptive mandate compromise for religious non-profits back to the relevant Courts of Appeals without giving those courts any guidance on the merits.  In a per curiam opinion in Zubik v. Burwell  (Sup. Ct., May 16, 2016), the Court said in part:

In light of the positions asserted by the parties in their supplemental briefs, the Court vacates the judgments below and remands to the respective United States Courts of Appeals for the Third, Fifth, Tenth, and D. C. Circuits. Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans “receive full and equal health coverage, including contraceptive coverage.” ....

The Court expresses no view on the merits of the cases. In particular, the Court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.  Nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by petitioners’ health plans “obtain, without cost, the full range of FDA approved contraceptives.” ... Through this litigation, petitioners have made the Government aware of their view that they meet “the requirements for exemption from the contraceptive coverage requirement on religious grounds.” ...  Because the Government may rely on this notice, the Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice....

Justice Sotomayor, joined by Justice Ginsburg, filed a concurring opinion emphasizing that the Court has decided nothing about the merits of the case, warning that in the past some court had incorrectly read similar disclaimers by the Court as signaling something about the merits.

In separate orders, the Court applied its decision to six additional cases posing the same legal issue in which certiorari petitions were pending.  The Court's actions no doubt reflect a 4-4 split on the merits.  In its per curiam opinion today, the Court-- eternally hopeful--added:

We anticipate that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them.

New York Times reports on the decision.

Parties File Supplemental Reply Briefs With Supreme Court In Zubik Case

Yesterday the petitioners and respondents both filed Supplemental Reply Briefs with the U.S. Supreme Court in Zubik v. Burwell, the case challenging the government's compromise for religious non-profits that object to including contraceptive coverage in their employee health plans.  The briefs make it clear that there is not agreement between the parties on an alternative compromise. The petitioner's brief (full text) says in part:

If petitioners were truly exempt from the mandate, and those companies were to offer their employees the kind of truly separate coverage that petitioners have described—i.e., “a separate policy, with a separate enrollment process, a separate insurance card, and a separate payment source, and offered to individuals through a separate communication”—then petitioners would no longer have a RFRA objection.

The government's brief (full text) counters:

[P]etitioners assert that it is not enough that insurers provide that coverage entirely outside petitioners’ health plans and without their involvement, as the accommodation already requires. Petitioners also insist that the coverage must consist of contraceptive-only insurance policies, not direct payments for contraceptives. And they add that women must take affirmative steps to enroll, and cannot be covered automatically.

RFRA does not give petitioners the right to insist upon those new conditions. The statute simply does not entitle them to dictate the terms of insurers’ separate dealings with women.

Parties Respond To Supreme Court's Proposed Contraceptive Compromise In Zubik Case

As previously reported, last month the U.S. Supreme Court in Zubik v. Burwell issued an unusual order seeking the parties' reactions to a Court drafted compromise on provision of health insurance contraceptive coverage for employees of religious non-profits. Yesterday both the government (full text of Government's brief) and the petitioners (full text of Petitioners' brief) filed briefs with their answers.  Neither side totally bought into the Court's alternative.  At the center of their disagreement is the question of whether employees of objecting religious non-profits will end up automatically receiving contraceptive coverage from an alternative source, or whether they will have to take separate independent action in order to obtain that coverage. The compromise floated in the Supreme Court's Order is ambiguous in this regard, suggesting:

Petitioners ... would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage.... 

In responding to the Court's proposal, the Government said in part:

Requiring an employer seeking an exemption from the contraceptive-coverage requirement to provide written notice plays an important role in implementing the accommodation, and eliminating that requirement would impose real costs on the parties whose rights and duties are affected—including objecting employers. But the accommodation for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.

On the other hand, Petitioners argued:

Under the current regulatory scheme, there is just a single plan that automatically comes with payments for contraceptive services. Petitioners’ employees, therefore, automatically receive free contraceptive coverage solely by virtue of their enrollment in petitioners’ plans. There is no reason why this must be so. Instead, to truly separate petitioners from the contraceptive coverage, there should, at a minimum, be “two separate health insurance policies (that is, the group health insurance policy and the individual contraceptive coverage policy),”... with separate enrollment processes, insurance cards, payment sources, and communication streams....

[I]f the contraceptive coverage is to be truly separate, not just an automatic and unavoidable component of the petitioner’s plan, then it must have an enrollment process that is distinct from (and not an automatic consequence of) enrolling in the employer’s plan. Otherwise, it is not independent of the employer’s plan. That process certainly need not be complex. Like activating a credit card, it could be as simple as having the insurance company send each eligible employee a contraceptive coverage card with a sticker attached providing a telephone number to call or website portal to use should she wish to activate the coverage.

Both the government and petitioners recognized that the Court's proposed alternative failed to deal with non-profits that self-insure and use third-party administrators to implement coverage. They both also recognized that petitioners' objections are more difficult to deal with in this context. The government's answer was that some designation or self-certification by the non-profit is unavoidable here, but " any employer that objects to a feature of the accommodation unique to self-insured plans can switch to an insured plan."

The non-profits, on the other hand, devoted a significant portion of their brief to the problem of self-insured employers, saying in part:

If commercial insurance companies begin making truly separate  contraceptive coverage available to the employees of petitioners with insured plans as contemplated by this Court’s order, then there should be no legal obstacle to allowing additional individuals to enroll in those plans, whether directly through the insurer or through the Exchanges..... 

The only question, then, would be how employees of employers with self-insured plans would learn of the availability of those contraceptive-only policies. Asking the objecting employer or the objecting church plan to provide employees with that information would go well beyond what this Court’s order contemplates and what RFRA can tolerate. But there are other means through which individuals could learn about the availability of such contraceptive-only policies and how to enroll. For instance, the government itself could provide that information and assist individuals in enrollment.....

The government also could require doctors and other healthcare providers who have no religious objections to contraception to provide individuals with information about how to enroll in a contraceptive only plan if their employer’s plan does not include such coverage, and to help them complete that process should they choose to do so.

Wall Street Journal reports on the briefs.

Supreme Court In Unusual Order Floats Alternative Compromise In Contraceptive Mandate Cases

The U.S. Supreme Court today issued an unusual Order (full text) in Zubik v. Burwell and the six other cases consolidated with it, less than a week after the Court heard oral arguments in the case.  In what is apparently an attempt to avoid a 4-4 split in the case, the Court has essentially drafted its own version of a compromise on provision of contraceptive coverage in health insurance policies for employees of religious non-profits, and is asking the parties whether they will buy into it. The Order reads in part:

The parties are directed to file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.  Petitioners with insured plans are currently required to submit a form either to their insurer or to the Federal Government (naming petitioners’ insurance company), stating that petitioners object on religious grounds to providing contraceptive coverage. The parties are directed to address whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners. 

For example, the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.

The parties may address other proposals along similar lines, avoiding repetition of discussion in prior briefing.....

Initial reactions from the non-profits suggest that they may be willing to accept this version of the compromise. A press release from the Becket Fund, counsel for Little Sisters of The Poor, petitioners in one of the cases, describes the Court's Order as an "excellent development."

Transcript of Arguments In Zubik Case Is Now Available

The full transcript of today's oral arguments in Zubik v. Burwell, the contraceptive coverage mandate accommodation case, is now available. Lyle Denniston at SCOTUSblog has an interesting analysis of the arguments.

Supreme Court Will Hear Oral Arguments Today In Contraceptive Coverage Mandate Accommodation Challenge

This morning the U.S. Supreme Court hears oral arguments in Zubik v. Burwell and six other cases consolidated for argument with it. (Hearing List.)  The cases all involve challenges to the Obama Administration's Affordable Care Act accommodation for religious non-profits.  Religious non-profits that object to including coverage for contraceptive services in their employee health plans may opt out in favor of coverage that is furnished instead directly by the organization's insurer or third-party administrator. Although there is a split among circuits on the issue, all of the cases being argued today involve appeals court decisions upholding the mandate.  The cases raise fundamental issues of interpretation and application of the Religious Freedom Restoration Act.

The Court has allotted 90 minutes for oral argument of the consolidated cases. Argument time for the religious non-profits will be divided between former Solicitor General Paul D. Clement and Jones Day partner Noel J. Francisco. Arguing for the government will be U.S. Solicitor General Donald B. Verrilli, Jr.  The SCOTUSblog case page furnishes links to the dozens of briefs from parties and amici that have been filed, as well as links to extensive commentary on the cases. A transcript of the oral arguments should be available later in the day from the Supreme Court's website.

While the arguments are taking place, outside the Supreme Court building a rally is planned by Little Sisters of the Poor, the non-profit that has been the face of the challengers on social media and in an op-ed last week in the New York Times. Planners say that hundreds of religious women, college students, and clergy will participate.  An op-ed in Sunday's Washington Post by Prof. Douglas Laycock counters the arguments by Little Sisters.

With the recent death of Justice Scalia, it is possible that the Court could split 4-4 in the case, which would result in affirmance of the Circuit Court decisions.  The first such 4-4 affirmance was published today in a case involving interpretation of the Equal Credit Opportunity Act.

Amicus Briefs Supporting Government In Zubik Case Are Filed

Feb. 17 was the deadline to file amicus briefs with the U.S. Supreme Court in support of the government's position in Zubik v. Burwell and its companion cases which challenge the accommodation for religious non-profits that object to the contraceptive coverage mandate under the Affordable Care Act.  21 amicus briefs were filed, and SCOTUSblog has links to most of them, as well as to the amicus briefs supporting petitioner which where due last month. (See prior posting.) Oral argument is set for March 23. With the death of Justice Scalia, the possibility of an evenly divided court is present.  That would affirm the Circuit Court decisions in all 7 of the cases in which review was granted.

11th Circuit Upholds Contraceptive Mandate Accommodation, But Delays Enforcement Pending SCOTUS Decision

Yesterday in a consolidated appeal of cases coming from Alabama and Georgia, the U.S. 11th Circuit Court of Appeals in a 2-1 decision upheld the Obama Administration's accommodation for religious non-profits that object to the Affordable Care Act's contraceptive coverage mandate.  In Eternal Word Television Network, Inc. v. Burwell, (11th Cir., Feb. 18, 2016), the majority, in an 86-page opinion by Judge Pryor, held that the accommodation does not violate the protections of the Religious Freedom Restoration Act, because it does not substantially burden the religious exercise of non-profits.  Alternatively the majority concluded that the government has met RFRA's compelling interest and least restrictive means tests. Judge Pryor, in a n 86-page majority opinion, said in part:

We recognize that the plaintiffs sincerely abhor and object to the subsequent acts taken by the government and their TPA [third party administrator], which ultimately result in the TPA providing contraceptive coverage to their plan participants and beneficiaries. We acknowledge that they “may not accept [the] distinction” that we draw here between their conduct and the downstream, separate conduct of HHS and the TPAs to provide coverage.... But we simply cannot say that RFRA affords the plaintiffs the right to prevent women from obtaining contraceptive coverage to which federal law entitles them based on the de minimis burden that the plaintiffs face in notifying the government that they have a religious objection. 

Judge Anderson filed a 3-page concurring opinion focusing on the "less restrictive means" issue.

Judge Tjoflat, in a 55-page dissent, said in part:

If the substantial-burden test were as the majority believes it to be, federal judges would have to decide whether the burden itself substantially violated the adherent’s beliefs. That is, the majority would necessarily shift the gaze of its “objective inquiry” to the merits of religious belief. In this Bizarro World, it would be secular courts making ex cathedra pronouncements on whether Muslims are truly put out by requirements to shave their beards...., whether Seventh-day Adventists are sufficiently deterred from accepting employment by requirements to work on Saturdays..., whether Santeria priests could just make do without ritual sacrifice or Ache-infused beads and shells..., and whether the sacramental use of peyote is really that big of a deal to members of the Native American Church.... But, of course, the Constitution does not vest in the judiciary the authority to declare winners and losers in matters of faith.

Despite the majority's views on the merits, it stayed enforcement of the accommodation against plaintiffs pending the Supreme Court's decision later this term on the identical issue in Zubik v. Burwell.  Daily Report has more on the decision.

Amicus Briefs Supporting Petitioners In Zubik Are Now Available

Monday was the deadline to file amicus briefs with the U.S. Supreme Court in support of petitioners in Zubik v. Burwell and its companion cases which challenge the accommodation for religious non-profits that object to the contraceptive coverage mandate under the Affordable Care Act.  Forty-two amicus briefs were filed, and Becket Fund has links to the full text of all of them. Amicus briefs in support of the government's position will be due by Feb. 17 (ten days after the due date for respondent's brief).  Here is SCOTUSblog's case page on Zubik.

Court Allows RFRA Challenge To ACA Individual Mandate To Proceed

A Missouri federal district court yesterday refused to dismiss for failure to state a claim under RFRA a suit by a state legislator and his wife asserting their religious rights are burdened by the Affordable Care Act's mandate requiring them to purchase health insurance which includes contraceptive coverage.  In Wieland v. U.S. Department of Health and Human Services, (ED MO, Jan. 8, 2016),  Paul and Teresa Wieland, who are Roman Catholics, assert that paying for or participating in a healthcare plan that includes coverage for contraceptives, or providing such insurance coverage for their three daughters, violates their sincerely-held religious beliefs. (The daughters were 12, 18 and 19 when the suit was brought.) The court, relying on 8th Circuit precedent, said:

it is not the Court’s role to second-guess the reasonableness of a plaintiff’s sincerely-held religious beliefs....

The court concluded that while the government may be able to prove that the religious exercise burden is justified by a compelling governmental interest, that is not something plaintiffs have an obligation to disprove at this stage in order to avoid dismissal.  The court however did dismiss plaintiffs' 1st Amendment free exercise and free speech claims, as well as their substantive due process and Administrative Procedure Act claims. (See prior related posting including link to complaint.)

District Court Refuses To Extend Exemption From Contraceptive Mandate To Non-Religious Organization and Its Religious Employees

In Real Alternatives, Inc. v. Burwell, (MD PA, Dec. 10, 2015), a Pennsylvania federal district court, in a  76-page opinion, rejected two related challenges to the Affordable Care Act contraceptive coverage mandate.  The first challenge was brought by a non-profit, non-religious, pro-life organization that claimed equal protection principles require that it be extended the same exemption from furnishing its employees contraceptive coverage as is given to religious employers. The court held that the government's interest in protecting religious freedom is a rational basis for distinguishing religious from non-religious groups, and that the group here differs significantly from a religious organization:

Here ... we confront only Real Alternatives’ mission statement – a brief, single sentence explaining that Real Alternatives is a business which “exists to provide life-affirming alternatives to abortion services throughout the nation.”...  Though based on moral beliefs, this single mission statement is not “equivalent to religion.” ... It does not provide a comprehensive code to guide individuals in their day-to-day life challenges. It does not operate to fill the same position in one’s mind that religion can occupy. More akin to a political position with moral underpinnings than a coherent ideology, Real Alternatives’ single mission statement is simply not comparable to a philosophic belief system such as Janism or Buddhism....

The court also held that various provisions in federal law that protect conscience rights of those that object to abortion are inapplicable here:

Though Plaintiffs may believe that certain FDA-approved contraceptives cause abortions, federal law has never equated emergency contraceptives with abortion.

The second challenge was by the three employees of Real Alternatives (all lawyers) who argued that the government violated RFRA by forcing them to obtain insurance that includes coverage for drugs and devices to which they are religiously opposed. The court rejected this contention, finding that the requirement does not impose a "substantial burden" on their religious exercise because it does not cause them to modify their behavior in violation of their beliefs:

[W]e cannot in good conscience find that a burden which ... requires no independent affirmative act on the Plaintiffs’ part, is substantial enough to run afoul of the RFRA.

The court went on to hold that the mandate furthers the government's compelling interests in gender equality and public health.  It added another consideration:

Often, as is the case with Plaintiffs today, entire families are covered by one plan. Health care coverage decisions therefore are not left wholly to the individual but are often made in the context of the family. Yet there is no guarantee that every member of a family covered by a plan feels similarly regarding contraceptive services. If families with religious objections to contraceptive coverage are able to opt out of such coverage, the determination of whether to do so is left to the collective family unit. This collective decision could create untold tension and familial strife should disagreement over contraceptive coverage arise, which is more likely now that children up to the age of twenty-six may be covered by their parents’ plans.

Appellant In Contraceptive Mandate Case Creates "Novena To Reverse HHS Mandate"

As previously reported, last week the U.S. Supreme Court granted certiorari in seven cases brought by various religious non-profits challenging the Obama Administration's accommodation for non-profits that object to furnishing contraceptive coverage in their employee health insurance plans. One of the plaintiffs that is pressing a challenge at the Supreme Court level is the Catholic pro-life organization Priests For Life. Yesterday the group announced that it had created a Novena to Reverse HHS Mandate (a series of nine prayers to be recited on successive days), and invited individuals, families, churches and schools to join in the prayer campaign.  Here are two excerpts from the Novenas:

At this moment, therefore, when our government has decided to force us to cooperate in evil, we pray for the grace to be faithful to you and to oppose the unjust laws and mandates that have been imposed upon us and our institutions.....

We pray, Lord, for our President and for the thousands of people who serve in his administration. We pray that you enlighten and guide them, and free them from the deception of evil.

Supreme Court Grants Review In 7 Cases Challenging ACA Religious Non-Profit Accommodation On Contraceptive Coverage

The U.S. Supreme Court today granted certiorari in all seven of the cases pending before it that challenge the Obama Administration's Affordable Care Act regulations accommodating religious non-profit institutions that object to furnishing contraceptive coverage in their health insurance plans. The Court also consolidated the cases for review. (Order list.) The religious hospitals, colleges and charities involved all claim that the accommodation does not go far enough and still forces them to be complicit in furnishing contraceptive coverage. The Court limited its grant of certiorari to questions of whether the regulations' impact on the religious exercise of the non-profits violates the Religious Freedom Restoration Act. Becket Fund has links to the petitions for certiorari in all the cases, as well as to the reply and amicus briefs.  The cases are Zubik v. Burwell (3rd Circuit); Priests for Life v. Department of Health & Human Services (D.C. Circuit); Roman Catholic Archbishop v. Burwell (D.C. Circuit); East Texas Baptist University v. Burwell (5th Circuit); Little Sisters of the Poor v. Burwell (10th Circuit); Southern Nazarene University v. Burwell (10th Circuit); and Geneva College v. Burwell (3rd Circuit).  All of these circuit court decisions upheld the accommodation.  The two cases from the 8th Circuit which held that the accommodation violates RFRA (see prior posting) have not yet reached the Supreme Court. The Washington Post reports on the Court's action.

5th Circuit (With Dissents) Denies En Banc Rehearing In Non-Profit Contraceptive Mandate Cases

In East Texas Baptist University v. Burwell, (5th Cir., Sept. 30, 2015), the U.S. 5th Circuit Court of Appeals denied a panel rehearing and, by a vote of 4-11, denied an en banc rehearing in three related cases, all raising challenges to the Obama administration's accommodation for religious non-profits that object to the Affordable Care Act requirement that their health insurance policies cover contraceptive services. The 3-judge panel held that plaintiffs had not shown a substantial burden on their religious exercise. (See prior posting.) Judge Jones, joined by Judges Clement and Owen filed a dissent from the denial of the en banc rehearing, saying in part:

This case goes to the heart of religious liberty protected by the Religious Freedom Restoration Act (“RFRA”).... How ironic that this most consequential claim of religious free exercise, with literally millions of dollars in fines and immortal souls on the line, should be denied when nearly every other individual religious freedom claim has been upheld by this court. How tragic to see the humiliation of sincere religious practitioners, which, coming from the federal government and its courts, implicitly denigrates the orthodoxy to which their lives bear testament. And both ironic and tragic is the harm to the JudeoChristian heritage whose practitioners brought religious toleration to full fruition in this nation. Undermine this heritage, as our founders knew, and the props of morality and civic virtue will be destroyed.

Austin American-Statesman reports on the rehearing denial.

In Unscheduled Stop, Pope Supports Challenge To ACA Contraceptive Mandate Accommodation

According to the Washington Post, Pope Francis as part of his visit to Washington yesterday made an unscheduled stop at the convent of the Little Sisters of the Poor.  The Little Sisters, who operate homes for the elderly in cities across the country, is involved in a high profile court case challenging the Obama Administration's accommodation for religious non-profits that object to making contraceptive coverage available to their employees. Vatican Radio reports today:

This is a sign, obviously of support for them [in their court case]” said Father Federico Lombardi, SJ, the head of the Holy See Press Office.

“In this sense it is connected also to the words that the Pope has said in support of the Bishops of the United States in the speech to President Obama,” Father Lombardi continued.

“This was a little addition to the programme, but I think it has an important meaning in this moment,” he said.

Presumably Father Lombardi's reference to the Pope's talk at the White House (see prior posting) were to this portion of the Pope's remarks:

[American Catholics are] concerned that efforts to build a just and wisely ordered society respect their deepest concerns and their right to religious liberty.  That freedom remains one of America’s most precious possessions.  And, as my brothers, the United States Bishops, have reminded us, all are called to be vigilant, precisely as good citizens, to preserve and defend that freedom from everything that would threaten or compromise it.

Little Sisters of the Poor have filed a petition for certiorari asking the U.S. Supreme Court to review the 10th Circuit's decision upholding the Obama Administration's contraceptive coverage accommodation for religious non-profits. (See prior posting.)

8th Circuit Creates Circuit Split On ACA Contraceptive Mandate Accommodation For Religious Non-Profits

Disagreeing with the decisions of several other Circuit Courts of Appeal, yesterday the 8th Circuit held that the Obama administration's contraceptive coverage accommodation for religious non-profits violates RFRA.  In Sharpe Holdings, Inc. v. U.S. Department of Health and Human Services, (8th Cir., Sept. 17, 2015), the court held the requirement that CNS International Ministries and Heartland Christian College complete notification forms to opt out of providing coverage imposes a substantial burden on their exercise of religion:

Even if the ACA requires that insurance issuers and group health plans include contraceptive coverage regardless of whether CNS and HCC self-certify, it also compels CNS and HCC to act in a manner that they sincerely believe would make them complicit in a grave moral wrong as the price of avoiding a ruinous financial penalty.... [I]f one sincerely believes that completing Form 700 or HHS Notice will result in conscience-violating consequences, what some might consider an otherwise neutral act is a burden too heavy to bear.... Religious beliefs need not be “acceptable, logical, consistent, or comprehensible to others” to deserve protection.

The court went on to hold that even if the government has a compelling interest here, it has not used the least restrictive means to achieve its goals. Those less restrictive means include requiring the government to identify the third party administrator who will be responsible for furnishing coverage; having the government directly furnish contraceptive coverage to women whose employers object to doing so; or making contraceptive coverage available through insurance exchanges.

In a second opinion issued yesterday, Dordt College v. Burwell, the 8th Circuit applied its Sharpe Holdings precedent to a similar challenge by two religiously affiliated colleges.

In a press release on the decision, Becket Fund says that the split in Circuits created by yesterday's opinions greatly increases the likelihood that the Supreme Court will grant review in one or more cases raising the issue.  Cert petitions have already been filed in seven other cases in which circuit courts upheld the accommodation rules.

7th Circuit Again Upholds Contraceptive Mandate Accommodation For Religious Non-Profits

In Grace Schools v. Burwell, (7th Cir., Sept. 4, 2015), the U.S. 7th Circuit Court of Appeals, in a 2-1 decision, rejected a RFRA challenge to the Obama administration's accommodation under the Affordable Care Act for religious non-profits that object to furnishing contraceptive coverage under their health insurance policies. The majority, relying to a large extent on the Circuit's recent decisions in Notre Dame and in Wheaton College, held that the accommodation does not impose a substantial burden on the free exercise rights of various Indiana-based Catholic non-profit charitable, educational and health care institutions.  The majority said in part:

The accommodation does not serve as a trigger or a conduit for the provision of contraceptive services.... It is the operation of federal law, not any actions that the plaintiffs must take, that causes the provisions of services that the plaintiffs find morally objectionable. The accommodation has the legal effect of removing from objectors any connection to the provision of contraceptive services. As we noted above, every other circuit court to consider the issue of whether the mandate imposes a substantial burden on religious exercise has come to the same conclusion.

However the majority maintained the district court's injunction in the case for 60 days to give the district court time to consider certain other arguments raised by plaintiffs.

Judge Manion dissented, saying in part:

The HHS accommodation is the long and winding extension cord the government uses to power its contraceptive mandate. It winds through regulations and additions and revisions. The court, through a perfunctory examination, interprets the accommodation’s twisted framework and holds that it frees the religious nonprofits from having to power the mandate themselves and, thus, does not violate the RFRA. The court is wrong: A thorough examination reveals that the accommodation’s tangled mess is hiding the fact that the extension cord gets its power from the nonprofits’ health plans and must be plugged in before it will work. It also exposes the fact that the government is forcing the nonprofits to plug in the accommodation themselves by signing the self‐certification or providing the alternative notice.

10th Circuit Denies En Banc Review, Over 5 Dissents, In Contraceptive Mandate Case

As previously reported, in July, without seeking en banc review, a petition for certiorari was filed with the U.S. Supreme Court for review of the 10th Circuit's panel decision upholding application of the Obama Administration's Affordable Care Act accommodation for religious non-profits to Little Sisters of the Poor. Nevertheless, 10th Circuit judges sua sponte called for a vote on whether the panel decision should be reviewed en banc. In Little Sisters of the Poor Home for the Aged v. Burwell, (10th Cir., Sept. 3, 2015), a majority of the judges voted to deny a rehearing, but 5 judges filed a dissent to the denial. Judge Hartz's dissent, joined by Judges Kelly, Tymkovich, Gorsuch and Holmes, calls the 3-judge panel's decision "clearly and gravely wrong." The dissenters say in part:

the panel majority may be saying that it is the court’s prerogative to determine whether requiring the plaintiffs to execute the documents substantially burdens their core religious belief, regardless of whether the plaintiffs have a “derivative” religious belief that executing the documents is sinful. This is a dangerous approach to religious liberty.

Christian Post reports on the court's decision.

District Court Expands Contraceptive Coverage Exemption To Secular Pro-Life Employers and Employees With Religious Objections

In March for Life v. Burwell, (D DC, Aug. 31, 2015), the D.C. federal district court held that the Affordable Care Act contraceptive coverage mandate violates equal protection principles of the Fifth Amendment insofar as it grants an exemption to houses of worship and their integrated auxiliaries, but not to a secular anti-abortion organization such as March for Life.  It went on to hold that for employees of March for Life who hold religious objections to participating in an insurance plan that covers contraceptives, the Religious Freedom Restoration Act requires the government to allow third-party insurers to offer the employees insurance plans consistent with their religious beliefs. The court enjoined the government from enforcing the contraceptive coverage mandate against March for Life, its health insurance issuer and the insurance issuer of the employee plaintiffs in the case. New York Times reports on the decision.

10th Circuit Grants Stay In Contraceptive Mandate Case Pending Supreme Court Action On Cert.

As previously reported, in July a petition for certiorari  was filed with the Supreme Court in Little Sisters of the Poor Home for the Aged v. Burwelll.  In the case, the 10th Circuit upheld  the Obama Administration's Affordable Care Act accommodation for religious non-profits that object to furnishing contraceptive coverage. On Friday, the 10th Circuit issued an order (full text) staying issuance of its mandate until the Supreme Court's either denies review or decides the case. Becket Fund issued a press release on the 10th Circuit's action.