Notre Dame Alums Object To University's Contraceptive Mandate Position

As previously reported, Notre Dame University is allowing its its health insurance providers to continue to furnish contraceptive coverage for university employees and students, even though Trump Administration rules now allow the university to opt out on religious grounds. Life Site News yesterday reported that 66 lawyers who are Notre Dame alumni have signed a letter (full text) to Notre Dame president Father William Jenkins strongly objecting to the University's decision. The letter objects that the university "now doing voluntarily precisely what it said it could not do in good conscience...." The letter goes on to charge that the school's assertions "now appears to be a collection of flat-out misrepresentations" in what amounts to "a pretend lawsuit."  The letter continues in part:

If, then, there is some explanation that will absolve the University from the charge of playing fast and loose with the courts or mitigate to some degree its blame, we urge you to provide it.

If there is not, then the matter seems to us to be quite serious enough to demand the attention of the Fellows and the Board of Trustees. It will be bought to their attention in due course. Remedial action should be taken, an accounting given to the Notre Dame community, and thoughtful consideration given to how amends might be made to the courts. ...

Finally, though we hope it does not come to it, Rule 11 of the Federal Rules of Civil Procedure does provide a means for federal courts to determine if there have been misrepresentations by litigants and, if so, what to do about it. A court can invoke the procedure on its own initiative. Given the wide publicity accorded the university's turnabout, Court of Appeals judges ... might think a Rule 11 hearing appropriate.

Another Court Enjoins Expanded Exemptions From Contraceptive Coverage Mandate

In State of California v. Health and Human Services, (ND CA, Dec. 21, 2017), a California federal district court issued a nationwide preliminary injunction against enforcement of the Trump Administration's Interim Final Rules issued in October (see prior posting) expanding exemptions from the ACA contraceptive coverage mandate for those with religious or moral objections.  The court ordered the government, pending resolution on the merits, to proceed under the narrower exemption regime that was in effect prior to October.  The court concluded that plaintiffs had shown a likelihood that they will succeed on their claim that the government violated the Administrative Procedure Act by promulgating the Interim Final Rules without advance notice and comment.  Americans United issued a press release announcing the decision.  Last week another federal district court issued a similar preliminary injunction. (See prior posting.)

Court Issues Nationwide Injunction Against Expanded ACA Contraceptive Mandate Exemptions

In Commonwealth of Pennsylvania v. Trump, (ED PA, Dec. 15, 2017), a Pennsylvania federal district court granted a nationwide preliminary injunction  against enforcement of the Interim Final Rules issued by the Trump Administration in October (see prior posting) expanding exemptions from the ACA contraceptive coverage mandate for those with religious or moral objections.  First, in a lengthy discussion, the court concluded that Pennsylvania has standing to bring the challenge because of its "quasi-sovereign interest in safeguarding the health and wellbeing of its women residents," and because it will now "have to increase its expenditures for State and local programs providing contraceptive services."

The court, without reaching constitutional challenges, found that plaintiffs had shown a likelihood of success on the merits because of two types of violations of the Administrative Procedure Act: the government violated the APA's notice-and-comment requirements and the new rules are "arbitrary, capricious, or not in accordance with law."  Characterizing as "matryoshkanesque in its construction" the government's argument that it has statutory authority to bypass the notice-and-comment requirement, the court said: "The argument is creative, but not supported by law." Similarly the court rejected the government's argument that it had "good cause" to bypass the notice-and-comment requirement.

Examining whether the new rules are inconsistent with the Affordable Care Act, the court was particularly critical of the "moral exemption" rule, saying in part:

The Moral Exemption Rule allows any non-profit or for-profit organization that is not publicly traded to deny contraceptive coverage for its employees for any sincerely held moral conviction. This means that boards of closely held corporations can vote, or their executives can decide, to deny contraceptive coverage for the corporation’s women employees not just for religious reasons but also for any inchoate – albeit sincerely held – moral reason they can articulate. Who determines whether the expressed moral reason is sincere or not or, for that matter, whether it falls within the bounds of morality or is merely a preference choice, is not found within the terms of the Moral Exemption Rule. If one assumes that it is the Agency Defendants – or, indeed, any agency – then the Rule has conjured up a world where a government entity is empowered to impose its own version of morality on each one of us. That cannot be right.

The court went on to reject the government's argument that the new religious exemption is required by the Religious Freedom Restoration Act, citing cases in which the Third Circuit has found that the prior accommodation process governing religious objections did not impose a substantial burden on the exercise of religion.  Pennsylvania's attorney general issued a press release announcing the decision.  New York Times reports on the decision. [Thanks to Tom Rutledge for the lead.]

Missouri Offers State Employees Health Policies That Exclude Abortion, Contraception, Sterilization

As previously reported, last year a Missouri federal district court in Wieland v. HHS enjoined the federal government from enforcing the Affordable Care Act against a state legislator who, on religious grounds, objected to participating in a healthcare plan for himself, his wife and his daughters that provides coverage for contraceptives.  Now according to a press release from the Thomas More Society, the state of Missouri has begun to offer all state employees the option of selecting a health insurance plan that excludes coverage for abortion, contraceptives or sterilization.

Notre Dame, In About Face, Will Continue Contraceptive Coverage Under Accommodation Rules

Reversing an announcement made last month (see prior posting), Notre Dame University yesterday told employees that they will continue to receive health insurance contraceptive coverage.  Under accommodation rules developed by the Obama Administration, the coverage is provided without cost by the insurance company directly to employees, without Notre Dame paying for it.  As reported by AP, the university thought that its insurer would end the no-cost coverage now that changes in Affordable Care Act rules allow religious non-profits to opt out of objectionable coverage. However the insurer has indicated that it will continue to provide the coverage.  A Notre Dame spokesman said:

Recognizing ... the plurality of religious and other convictions among its employees, [the University] will not interfere with the provision of contraceptives that will be administered and funded independently of the University.

In a similar reversal, Notre Dame also told students yesterday that after August they will still be able to obtain contraceptive coverage by electing it separately through their student health plan.

UPDATE: Since Notre Dame has a self-insured plan, references to "insurer" should be read as a reference to the third party administrator and benefits manager.  Sycamore Trust, an alumni group dedicated to preserving Notre Dame's Catholic identity strongly criticized the university's action.

New Contraceptive Coverage Rules Challenged As Notre Dame Plans To End Coverage

As previously reported, the Trump Administration has issued Interim Final Rules that expand religious exemptions from the Affordable Care Act contraceptive coverage mandate.  The Administration has also settled many of the lawsuits challenging the contraceptive coverage requirement.  Indiana Public Media reports that Notre Dame University last week informed students and employees that after the end of the current plan year, health insurance policies obtained through the University will no longer cover contraceptives for birth control. Apparently plans will still cover contraceptives where necessary to treat medical conditions.

Yesterday, three Notre Dame students, an employee of an Illinois university and an employee of a church filed suit in an Indiana federal district court challenging the new Interim Rules.  The complaint (full text) in Shiraef v. Hargan, (ND IN, filed 10/31/2017), contends:

3. Bypassing the legally-required notice and comment process, the Rules were promulgated to take effect immediately and nullify existing regulations that took over six years to implement and involved no less than six rounds of notice-and-comment rulemaking, including consideration of over 725,000 comments.

4. The Rules and their issuance violate the Administrative Procedure Act, the Establishment Clause of the First Amendment to the U.S. Constitution, the Due Process Clause of the Fifth Amendment to the U.S. Constitution including equal protection guarantees and the right to liberty, and the ACA.

Americans United issued a press release announcing the filing of the lawsuit.

Government Settles 13 Contraceptive Mandate Cases

According to a press release from Thomas Aquinas College, last Friday 74 plaintiffs in 13 cases around the United States entered a settlement agreement with the federal government in their lawsuits seeking religious exemptions from the Affordable Care Act contraceptive coverage mandate.  The settlement comes after the Trump Administration issued new rules providing broadened exemptions to individuals and entities with religious and moral objections to the ACA mandate. (See prior posting.) According to the press release:

Under the terms of the settlement, the government concedes that the HHS Mandate “imposes a substantial burden” on plaintiffs’ “exercise of religion” and, as such, “cannot be legally enforced, under RFRA, against Plaintiffs or their health plans.” The government therefore agrees to treat plaintiffs “as exempt from the Regulations or any materially similar regulation or agency policy.”

Another Suit Challenges Expanded Contraceptive Mandate Religious Exemptions

As previously reported, last week the Trump Administration issued interim final rules expanding religious and conscience exemptions from the Affordable Care Act contraceptive coverage mandate. The ACLU immediately filed suit challenging the new rules.  Now the state of Washington has also filed suit challenging the expanded exemptions.  The complaint (full text) in State of Washington v. Trump, (WD WA, filed 10/9/2017), contends in part that the rules violate the Establishment Clause:

The Religious IFRs [Interim Final Rules] and the corresponding portion of the 2017 Updated Guidelines are intended to and have the effect of advancing, imposing, and endorsing certain religious interests. For example, they permit a for-profit business to impose the costs of its owners’ anti-contraception beliefs on employees (and their dependents). Based on the religious beliefs of an employer or institution of higher education, the Religious IFRs deny women access to contraceptive coverage that the ACA would otherwise secure.

The suit also alleges that the rules violate the equal protection component of the 5th Amendment and violate the Administrative Procedure Act. Washington AG Bob Ferguson issued a press release announcing the filing of the lawsuit.

Can Publicly Held Corporations Have Religion But Not Morals?

As previously reported, yesterday the Trump Administration issued Interim Final Rules that expand exemptions from the Affordable Care Act contraceptive coverage mandate.  The Interim Rules create exemptions for entities with religious or moral objections, but create an interesting distinction between business entities asserting religious objections and those asserting moral ones.  A religious objector to furnishing contraceptive coverage may be either "A closely- held for-profit entity," or "A for-profit entity that is not closely held." (Release at pg. 160-161).  On the other hand, the new exemption for businesses with moral objections to furnishing contraceptive coverage includes only "A for-profit entity that has no publicly traded ownership interests (for this purpose, a publicly traded ownership interest is any class of common equity securities required to be registered under section 12 of the Securities Exchange Act of 1934)." (Release at pg. 98).  The Release (at pp. 51-56), in a lengthy explanation, asks for comments during the comment period on whether this distinction should be retained, saying in part:

The fact that many closely held for-profit entities brought challenges to the Mandate has led us to offer protections that would include publicly traded entities with religious objections to the Mandate if such entities exist. But the combined lack of any lawsuits challenging the Mandate by for-profit entities with non-religious moral convictions, and of any lawsuits by any kind of publicly traded entity, leads us to not extend the expanded exemption in these interim final rules to publicly traded entities, but rather to invite public comment on whether to do so....

Trump Administration Expands Contraceptive Mandate Exemptions For Religious and Moral Objectors

Yesterday the Trump Administration issued Interim Final Rules (effective immediately) that expand exemptions from the Affordable Care Act contraceptive coverage mandate for organizations, colleges and businesses that have religious or moral objections to furnishing coverage for employees (or enrolled students), as well as for employees who object to having such coverage.  The new Interim rules were issued in two releases, one covering religious exemptions (full text), and the second covering moral objections (full text).  A press release from the Department of Health and Human Service explains the new rules:

The Departments of Health and Human Services, Treasury, and Labor are announcing two companion interim final rules that provide conscience protections to Americans who have a religious or moral objection to paying for health insurance that covers contraceptive/ abortifacient services. Obamacare-compliant health insurance plans are required to cover “preventive services,” a term defined through regulation. Under the existing regulatory requirements created by the previous administration, employers, unless they qualify for an exemption, must offer health insurance that covers all FDA-approved contraception, which includes medications and devices that may act as abortifacients as well sterilization procedures.

Under the first of two companion rules released today, entities that have sincerely held religious beliefs against providing such services would no longer be required to do so. The second rule applies the same protections to organizations and small businesses that have objections on the basis of moral conviction which is not based in any particular religious belief....

Key Facts about today’s interim final rules:

• The regulations exempt entities only from providing an otherwise mandated item to which they object on the basis of their religious beliefs or moral conviction.

• The regulation leaves in place preventive services coverage guidelines where no religious or moral objection exists – meaning that out of millions of employers in the U.S., these exemptions may impact only about 200 entities, the number that that filed lawsuits based on religious or moral objections....

• The regulations leave in place government programs that provide free or subsidized contraceptive coverage to low income women, such as through community health centers....

Comments on the Interim Final Rules are due by Dec. 5.

The ACLU immediately announced that it was filing suit to challenge the Interim Rules.  The complaint (full text) in  ACLU v. Wright, (ND CA, filed 10/6/2017) contends that the Interim Rules violate the Establishment Clause as well as the equal protection components of the 5th Amendment, and the Administrative Procedure Act.

3rd Circuit Rejects Secular Anti-Abortion Group's Challenge To ACA Contraceptive Mandate

In Real Alternatives Inc. v. Secretary Department of Health and Human Services, (3d Cir. Aug. 4, 2017), a 3-judge panel of the U.S. 3rd Circuit Court of Appeals held unanimously that the Equal Protection Clause does not require the government to provide a secular anti-abortion group with the same exemption from the Affordable Care act contraceptive coverage mandate as is provided to houses of worship. The majority said in part:

Real Alternatives is in no way like a religious denomination or one of its nontheistic counterparts—not in structure, not in aim, not in purpose, and not in function. We do not doubt that Real Alternatives’s stance on contraceptives is grounded in sincerely-held moral values, but “religion is not generally confined to one question or one moral teaching; it has a broader scope.”

The court by a vote of 2-1 also rejected a claim under RFRA that religious exercise of employees who oppose contraceptives, but work for secular employers, is substantially burdened when the government requires the employer to include contraceptive coverage in their health plans. Judge Jordan filed an an opinion dissenting on this issue.  He contended that requiring objecting employees to pay for insurance that includes contraceptive coverage creates a substantial burden and that the government had not used the least restrictive means to achieve a compelling governmental interest. Legal Intelligencer reports on the decision.

Draft of Proposed Broader Contraceptive Mandate Exemption Becomes Available

As previously reported, the Office of Management and Budget has under review interim final rules that will expand conscience exemptions from the Obamacare contraceptive coverage mandate. A "leaked" 125-page draft of the Release proposing the rules (full text) has now become available.  The rules expand the complete exemption from the contraceptive coverage mandate to any entity that has religious beliefs or moral convictions objecting to some or all contraceptive coverage. This includes churches, any non-profit organization (religious or otherwise), closely-held for-profit companies, and publicly-held for-profit companies.  The rule also assures an exemption for any individual who objects to being covered or paying for some or all contraceptive services because of sincerely held religious beliefs or moral convictions.

As explained by the Release:

These interim final rules expand exemptions for religious beliefs and moral convictions for certain entities or individuals whose health plans may otherwise be subject to a mandate of contraceptive coverage through guidance issued pursuant to the Patient Protection and Affordable Care Act (ACA). These rules do not alter the discretion of the Health Resources and Services Administration (HRSA), a component of the U.S. Department of Health and Human Services (HHS), to maintain the guideline requiring contraceptive coverage where no such objection exists. These rules also leave the accommodation process in place as an optional process for certain exempt entities who wish to use it voluntarily.

Because these would be promulgated as Interim Final Rules rather than as Proposed Rules, they would go into effect immediately, with public comment on whether the Interim Rules should be modified or become permanent in their current form coming after the Interim Rules' effectiveness.  This is permitted under the Administrative Procedure Act for rules that grant an exemption or relieve a restriction. (5 USC Sec. 553(d)). Vox yesterday had more on the proposed rules.

Rule Under Review To Modify Contraceptive Coverage Mandate

The Office of Management and Budget reports that an Interim Final rule on Coverage Of Certain Preventive Services Under The Affordable Care Act is pending regulatory review.  The New York Times reports that this rule will relax the controversial requirements relating to contraceptive coverage for employees of religious non-profits.

Trump Justice Department Wants Further Extension In Remanded Contraceptive Mandate Cases

Last May the U.S. Supreme Court remanded to the Third, Fifth, Tenth, and D. C. Circuits a group of cases brought by religious non-profit institutions challenging the contraceptive mandate coverage accommodation worked out by the Obama administration.  The Supreme Court, apparently split evenly on the case, urged the parties to work out a compromise. (See prior posting.)  In a letter (full text) sent to the Catholic Leadership Conference by the Trump Campaign last October, Trump said that, if elected: "I will make absolutely certain religious orders like The Little Sisters of Poor are not bullied by the federal government because of their religious beliefs." However on Monday in a Status Report (full text) filed with the 5th Circuit Court of Appeals, the Justice Department asked for the cases to be held in abeyance for another 60 days, arguing:

the new Administration has been in place for only a few months. The regulations at issue here are jointly administered by three Departments—the Department of Health & Human Services, the Department of Labor, and the Department of the Treasury—and are the subject of numerous other lawsuits being handled by the Department of Justice. The nominee to be Secretary of Labor has not yet been confirmed, and numerous subcabinet positions at the Departments have not yet been filled. The issues presented by the Supreme Court’s remand order are complex; for example, the original accommodation took more than a year to develop with input from interested parties.

NBC News reports on developments.

Feds Unable To Find Compromise On Contraceptive Coverage Mandate

Last July, in response to the U.S. Supreme Court's remand in Zubik v. Burwell several federal agencies sought suggestions on ways to further accommodate objections by religious non-profits to  furnishing their employees coverage for contraceptive services in employer health plans. The National Law Journal this week reported that after receiving over 54,000 comments, the agencies are not modifying the current rules.  In a Jan. 9 FAQ Release, the Department of Labor said in part:

the comments reviewed by the Departments in response to the RFI indicate that no feasible approach has been identified at this time that would resolve the concerns of religious objectors, while still ensuring that the affected women receive full and equal health coverage, including contraceptive coverage.

The federal government also began filing status reports reflecting this decision with the various Courts of Appeal to which the cases had been remanded.

3rd Circuit Hears Oral Arguments In Contraceptive Coverage Mandate Case

Yesterday the U.S. 3rd Circuit Court of Appeals heard oral arguments (audio of full arguments) in Real Alternatives, Inc. v. Burwell. In the case, a Pennsylvania federal district court rejected a challenge by a non-profit, non-religious pro-life group to the scope of the Affordable Care Act contraceptive coverage mandate.  The non-profit argued, among other things, that it should be extended the same exemption from furnishing its employees contraceptive coverage as is given to religious employers. (See prior posting.)

Denver Archbishop Reflects on How a Catholic Should Vote in 2016

Last week, Denver Archbishop Samuel Aquila posted a lengthy discussion on the Archdiocese's website titled Voting as a Catholic in 2016: How Should a Catholic Vote. Recounting a dinner conversation he had recently had with a group of Catholics, Aquila said in part:

All pretty much agreed that, when it comes to life issues, Catholic politicians on both sides of the aisle have put party ideology before their faith and living their faith in the public square.

The Archbishop's comments focused primarily on issues of abortion, the Obamacare contraceptive coverage mandate and Proposition 106 on the Colorado ballot to legalize physician assisted suicide.

Federal Agencies Seek Public Input On Contraceptive Mandate Accommodation

In a Request For Information (full text) published yesterday in the Federal Register, the IRS, HHS and Employee Benefits Security Administration asked for suggestions on ways to further accommodate objections by religious non-profits to  furnishing their employees coverage for contraceptive services in employer health plans.  The Release is the government's response to the U.S. Supreme Court's remand last May in Zubik v. Burwell. (See prior posting.) The Release says in part:

The Departments are using the RFI procedure because the issues addressed in the supplemental briefing in Zubik affect a wide variety of stakeholders, including many who are not parties to the cases that were before the Supreme Court. Other employers also have brought RFRA challenges to the accommodation, and their views may differ from the views held by the employers in Zubik and the consolidated cases. In addition, any change to the accommodation could have implications for the rights and obligations of issuers, third party administrators, and women enrolled in health plans established by objecting employers.

Responses must be submitted by Sept. 20. [Thanks to Jeff Pasek for the lead.] 

RFRA Allows Insured To Refuse Contraceptive Coverage

In Wieland v. U.S. Department of Health and Human Services, (ED MO, July 21, 2016), a Missouri federal district court enjoined the federal government from enforcing the Affordable Care Act against a couple who, on religious grounds, object to participating in a healthcare plan that provides coverage for contraceptives and similarly object to providing contraceptive coverage to their daughters who are on their health insurance policy. Plaintiff, a Roman Catholic, is a Missouri state legislator and receives health insurance through the state's health care plan.  Finding that plaintiffs have standing because they might be able to find a plan that does not offer contraceptive coverage, the court went on to hold that RFRA bars enforcement of the mandate against plaintiffs, saying in part:

Defendants further argue that “[i]t is not a substantial burden on a person’s religion to subscribe to a group health plan that covers services that the person will not use for religious reasons, or that other individuals covered by the plan will elect, in the exercise of their personal choice, to utilize.” Plaintiffs contend that Defendants’ argument is, in essence, an attack on the sincerity of their religious beliefs, which the Supreme Court most recently in Hobby Lobby cautioned against. This Court agrees. Defendants’ argument is, in effect, an argument that Plaintiffs’ religious beliefs are unreasonable. However, the sincerity of Plaintiffs’ religious beliefs has not been disputed, and it is not for the Court “to say that [Plaintiffs’] religious beliefs are mistaken or insubstantial.”

The court went on to hold that even assuming that the government has a compelling interest in "a workable insurance system that covers a wide range of preventative health services," there are less restrictive means of achieving this goal:

the government could allow a system like that in place in Missouri before the Mandate, where individuals could simply check a box to opt out of contraceptive coverage.

Modern Healthcare reports on the decision. (See prior related posting.) [Thanks to Jeff Pasek for the lead.] 

Supreme Court Sends 2 More Contraceptive Mandate Cases Back To Circuit Courts

The U.S. Supreme Court today sent back to Courts of Appeal two more of the cases involving challenges by religious non-profits to the contraceptive coverage mandate accommodation. (5/23/16 Order List).  The cases today in which the Court granted certiorari, vacated the judgement below and remanded in light of Zubik v. Burwell are Catholic Health Care System v. Burwell, (Docket No. 15-1100) remanded to the 2nd Circuit (see prior posting), and Michigan Catholic Conference v. Burwell,  (Docket No. 15-1131) remanded to the 6th Circuit (see prior posting).