Catholic Schools Win Temporary Reprieve From Contraceptive Mandate

By Mark Walsh — January 01, 2014 3 min read
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Several Roman Catholic schools in the Washington, D.C., area have helped win a court order delaying the Obama administration’s requirement for contraceptive coverage under the Affordable Care Act.

The U.S. Court of Appeals for the District of Columbia Circuit on Dec. 31 blocked the administration’s rules in a case brought by the Archdiocese of Washington; the Catholic University of America, and Archbishop Carroll High School in the nation’s capital; Don Bosco Cristo Rey High School in Takoma Park, Md.; and Mary of Nazareth Roman Catholic Elementary School in Darnestown, Md.

In a separate action, U.S. Supreme Court Justice Sonia Sotomayor late on Tuesday temporarily blocked application of the contraceptive requirement against the Little Sisters of the Poor, an order of Roman Catholic nuns in Denver.

Sotomayor, who acted only hours before she presided over the New Year’s Eve ball drop in New York City’s Times Square, ordered a response from the Obama administration by 10 a.m. on Friday.

The late flurry of court actions by various Catholic groups came before the Jan. 1 effective date of the contraceptive mandate. Catholic organizations oppose the mandate because, as their court papers put it, the mandate will require them “to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization procedures, and related counseling, in a manner that is directly contrary to their religious beliefs.”

In an affidavit, Michael Friel, the principal of Mary of Nazareth elementary school, said the school does not meet the federal definition of a “religious employer” and thus is not exempt from the contraceptive mandate.

The school’s employees receive health insurance through the Archdiocese of Washington’s group health plan, which has historically excluded coverage for abortion, contraception, and sterilization in keeping with Catholic doctrine, the affidavit says.

The Obama adminstration’s purported “accommodation” for religious groups, Friel says, is unacceptable because the burden of finding a third-party administrator for the contraceptive coverage falls on Mary of Nazareth school or the Archdiocese plan.

“The mandate, even in its revised form, forces Mary of Nazareth to take actions that facilitate access to products and services antithetical to the Catholic faith,” Friel said in the affidavit.

A federal district judge ruled in September that Mary of Nazareth and the other K-12 schools in the Archdiocese of Washington’s suit lacked standing to challenge the contraceptive mandate because the federal government could not enforce the third-party administrator obligation against a church health insurance plan. The court did bar application of the mandate against St. Thomas Aquinas College, a Catholic institution with a self-insured health plan.

In a court brief filed with the federal appeals court in Washington, lawyers for the Archdiocese and the Catholic schools said the district court erroneously held that the schools lacked standing to challenge the mandate.

“It is undisputed that under the regulations, [the schools] are required to, among other things, either (a) provide their employees with contraceptive coverage directly, or (b) issue a self-certification that authorizes their third-party administrator to provide [the schools’] employees with such coverage,” the brief says. “It is, however, undisputed that both of those actions are contrary to [the schools’] sincerely held religious beliefs. It is also undisputed that the government will impose crushing fines on them if they do not comply.”

The Washington Catholic groups filed an almost identically-worded motion with the Supreme Court on Tuesday, but the D.C. Circuit issued the injunction [DCCircuit-ACAOrder.pdf] the groups sought first. A panel of the appeals court voted 2-1 for the injunction, with Judge David S. Tatel dissenting. “Because I believe that Appellants are unlikely to prevail on their claim that the challenged provision imposes a “substantial burden” under the Religious Freedom Restoration Act (RFRA), I would deny their application for an injunction pending appeal,” Tatel wrote.

Soon after the D.C. Circuit court acted in the Washington Archdiocese case, Justice Sotomayor, acting as circuit justice for the federal appeals court based in Denver, issued her order delaying the contraceptive mandate in the case involving the Little Sisters of the Poor.

The Supreme Court has already agreed to hear appeals this term from corporations that contend they have religious objections to the contraceptive mandate. That case, Sebelius v. Hobby Lobby Stores Inc. (No. 13-354), is likely to be argued in March or April.

A version of this news article first appeared in The School Law Blog.