By SUZANNE HAUGH, Special to the Bulletin | Published February 19, 2015
ATLANTA—A new chapter has been added in the ongoing fight against the Affordable Care Act’s contraceptive mandate.
Attorneys for the Atlanta Archdiocese, Catholic Education of North Georgia, Inc. and the Savannah Diocese joined those representing the Eternal Word Television Network Feb. 4 in back-to-back court cases before a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta.
As part of the federal health care law, the Health and Human Services’ mandate requires nearly all employers to provide abortion-inducing drugs, elective sterilizations and contraceptives to their employees free of charge even if an employer has moral objections to the mandate.
Dioceses comprised of churches are exempt from the mandate, as are closely held for-profit companies as decided last June by the Supreme Court in the well-known Burwell v. Hobby Lobby case. The remaining question yet to be answered by the courts consistently is whether religious nonprofit organizations also can be exempt.
Under federal rules, nonexempt religious nonprofits can opt out of providing the coverage under what the Obama administration calls a “work around.” They must notify HHS in writing of their religious objections. The government in turn tells insurers and third-party administrators that they must cover the services at no charge to employees.
But many religious groups object to the notification, saying they still would be complicit in supporting practices they oppose.
EWTN officials say the network finds the government’s mandate morally objectionable and argue that forcing a religious entity to comply with it violates freedom of religion and is unconstitutional.
Government has ‘a million ways’ to deliver contraceptives
“To these sisters it’s a grave sin,” said Emily Hardman, communications director of the Washington-based Becket Fund for Religious Liberty. The government has “a million ways to get these drugs to people” such as through clinics or Title X, the federal grant program for family planning.
Instead, the government says it has “no choice” to distribute contraceptives but through employer health insurance plans, according to Hardman.
Launched Aug. 15, 1981, by Mother Mary Angelica, a Poor Clare sister, EWTN serves more than 238 million households in more than 140 countries and territories. It claims to be the largest religious media network in the world. If it does not adhere to the HHS mandate, EWTN could be fined $35,000 for every day of noncompliance.
At the Feb. 4 hearing, Janine Metcalf of Jones Day’s Atlanta office argued on behalf of the Atlanta Archdiocese and the Savannah Diocese, while Lori Windham of the Becket Fund argued for EWTN, the state of Alabama and its attorney general Luther Strange, which joined EWTN’s lawsuit in 2013.
The global network is based in Irondale, Alabama, which, along with Georgia and Florida, comes under the jurisdiction of the 11th Circuit. Last June, a three-judge panel of the circuit court issued an order barring enforcement of the mandate pending the outcome of EWTN’s appeal.
Senior counsel Mark Rienzi at the Becket Fund has worked on EWTN’s case for more than three years. He was present for oral arguments for both cases and explained that the government has access to various mechanisms for distributing contraceptives, so what is “terrible and ridiculous” about the government’s position is its insistence on going through religious entities.
“The government doesn’t need Catholic broadcasting networks and Little Sisters of the Poor to deliver contraceptives,” he told The Georgia Bulletin.
The Little Sisters of the Poor, a Denver-based religious order that cares for the elderly poor in several facilities around the U.S., has its own legal challenge of the mandate working its way through the courts.
Issue likely to go to U.S. Supreme Court
Rienzi commended Metcalf, the Jones Day attorney, for her explanation of a significant discrepancy in the mandate by describing the different situations of two Atlanta archdiocesan Catholic schools. Christ the King School is part of the archdiocese and therefore is exempt from the mandate. But Holy Redeemer School is not, because it’s one of five schools operated by Catholic Education of North Georgia, a religious nonprofit organization. Both schools are covered by the same health plan.
Metcalf noted, too, the “vast number of exemptions” available to churches and others to avoid the mandate that are not available to religious nonprofits.
One remedy offered by religious employers who oppose the mandate is for an employee who wants contraceptive coverage to get a health plan as an individual, called an “individual mandate,” offered through the Affordable Care Act.
“The government says those exchanges are perfectly good for tens of millions of other people,” Rienzi explained. “There is no reasonable argument that they are not also perfectly good for the occasional employee of a religious organization who does not want the plan the religious organization offers.”
It is likely the issue will eventually land in the U.S. Supreme Court, Rienzi said. Hardman agreed, saying, “There are 13 different (federal circuit) courts around the country and when you have different courts ruling on the same issue but in different ways it’s more likely the Supreme Court will take the case.”
The state of Alabama teamed up with EWTN after the network’s initial lawsuit, filed in 2012, was dismissed on technical grounds, a result Hardman attributed to the government causing confusion by changing court procedures “over and over.”
Rienzi has been maneuvering the EWTN case’s “twists and turns” for more than three years and recalled the first lawsuit’s dismissal on grounds the government would not penalize religious ministries and would fix the mandate within a year.
The underlying strategy, Rienzi believes, is that the government planned on winning the for-profit cases, like that of Hobby Lobby, which were in progress, and then would take on religious nonprofits.
“The government thought, incorrectly, that they would beat all the Hobby Lobbies of the world and then be able to use that win against EWTN and the Little Sisters of the Poor.”
Rienzi lamented the waste of money, time and energy for these Catholic entities to fight the mandate.
“It is a big, unnecessary waste of the ministries who all have better things to do like take care of the elderly poor or feed the hungry or things like that, and it’s a waste for the government,” he said. “They as sure as heck have enough problems without tying up lawyers in 100 cases, but we can’t control that. We can only show up in court and explain why their ideas are wrong.”