Law & Courts

Some Religious Schools Press ‘Obamacare’ Case

By Mark Walsh — March 17, 2016 5 min read
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The U.S. Supreme Court next week takes up a case that has pitted Roman Catholic elementary and secondary schools, religious colleges, orders of nuns, and other groups in a bitter battle with President Barack Obama’s administration.

In Zubik v. Burwell (Case No. 14-1418), the justices will weigh whether a federal religious-freedom law protects certain faith-based organizations from having to take any steps to opt out of providing contraceptive coverage to their female employees or students, including simply filing a piece of paper with the federal government to say that doing so would interfere with their beliefs.

The case stems from regulations under the Affordable Care Act, Obama’s signature health-care law. The law requires most large employers to offer group health plans with “minimum essential coverage,” which has been interpreted by the Department of Health and Human Services to include coverage of contraception.

Churches and some other religious organizations are exempt from the contraceptive mandate, but HHS declined to exempt many other religious employers, including schools, colleges, and nursing facilities. Those organizations must opt out of the program by informing the federal government in writing of their religious objections or else face fines.

Raising Objections

Many of those religious organizations object to the contraceptive mandate, arguing that certain forms of contraception are akin to abortion. And they object to having to notify the government of their objection, which triggers various procedures in which insurers or the government would pay the cost of contraception to beneficiaries.

“We’re all united on this point, the schools, the colleges, and the nonprofit religious groups,” said the Rev. Frank Pavone, the leader of Priests for Life, a New York City-based ministry that is among many religious employers challenging the regulations. “The government shouldn’t be judging our beliefs. When we say that what the government is asking violates our faith, it shouldn’t be questioning that.”

Range of Challengers

The non-exempt religious employers sued all over the country under the Religious Freedom Restoration Act of 1993, a federal law that says that “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”

The plaintiffs include Roman Catholic grade schools and high schools in Washington, D.C., and Maryland; a Catholic prep school in Erie, Pa.; religious colleges such as the Catholic University of America, Geneva College, and Oklahoma Baptist University; and, most famously, the Little Sisters of the Poor Home for the Aged, in Denver. (Religious activities of religious orders are exempt under the rules, but other of their activities aren’t, giving religious-right legal groups a powerful image in a group of elderly nuns fighting the government mandate).

Six out of seven federal appeals courts to consider the issue sided with the government, while one agreed with the religious employers that the regulations violated RFRA.

The religious employers contend that the Supreme Court, in its 2014 decision in Burwell v. Hobby Lobby Stores Inc., concluded that the fines for noncompliance with the contraceptive mandate threatened under the ACA imposed a burden on the religious exercise of family-owned or closely held corporations. The same logic should apply to religious employers, they contend.

The Obama administration argues in a Supreme Court brief that the accommodation offered to religious employers “respects religious liberty by allowing objecting employers to opt out of the generally applicable requirement to provide contraceptive coverage. It also respects the rights, dignity, and autonomy of female employees, students, and beneficiaries by arranging for third parties to provide those women with the full and equal health coverage to which they are entitled by law.”

Pushing Back

Gregory M. Lipper, a lawyer with Americans United for Separation of Church and State, a group that filed a friend-of-the-court brief backing the government’s policy, said that not every employee or student at a religious school or college, or other non-exempt organization, shares the same moral objections to contraception that leaders of the groups have.

“If the plaintiffs succeed in getting this accommodation struck down, women who work for these institutions will not have comprehensive health care,” he said.

Among the arguments of the religious employers is that the Obama administration’s exemption regulations are rife with “utter irrationality,” as one brief for Catholic religious employers puts it.

Two Catholic elementary schools in the nation’s capital help illustrate the point.

St. Augustine School, on V Street in Washington, was founded in 1858 to serve African-American students. It is incorporated as part of the Archdiocese of Washington. Because it is incorporated as part of the archdiocese, it is exempt from the contraceptive mandate.

About a mile-and-a-half away, on Park Road, is Sacred Heart School, an elementary school serving a largely Hispanic population. The school is part of a separate structure established by the archdiocese in 1995 called the Consortium of Catholic Academies. The four schools in the consortium have their own central office tailored to their administrative and fundraising needs.

Sacred Heart and the other schools in the consortium, along with a handful of other separately incorporated Catholic schools in the archdiocese, are not exempt. (They are among the many plaintiffs in several consolidated cases the justices are hearing in Zubik.)

“There are no meaningful distinctions between these organizations,” says a Supreme Court brief for the archdiocese. “There is accordingly no basis for the government to treat them differently … when it may treat both equally by offering both of them the same exemption.”

Thomas G. Hungar, a Washington lawyer and a former deputy U.S. solicitor general under President George W. Bush, said that schools and religious charities are integral to the missions of many churches.

‘Bizarre Wedge’

The exemption policy “drives this bizarre wedge between different organizations in a way that makes no sense,” said Hungar, who filed a friend-of-the-court brief on behalf of three orders of Catholic nuns, including the School Sisters of Christ the King of Lincoln, Neb., who work as administrators and teachers in Catholic schools in the area.

The brief contends the order is not exempt under the regulations “because the government does not consider their expressions of religious belief to be ‘exclusively religious activity’” as defined in the regulations.

Lipper, of Americans United, said the nation “has a history of granting special solicitude to houses of worship. But if the plaintiffs were correct in saying that the government could not distinguish between houses of worship and religious hospitals, schools, and other institutions, then anytime the government gave an exemption to a church, it would have to give it to all religious organizations.”

“That could bring long-term harm to religious liberty,” he said.

The case is being argued on March 23.

A version of this article appeared in the March 23, 2016 edition of Education Week as Some Religious Schools Press Obamacare Case

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