Catholic officials in Atlanta are waiting for a federal judge here to rule on their challenge to the Affordable Care Act’s contraceptive mandate, an issue that made headlines last week when a U.S. Supreme Court justice ruled temporarily for nuns fighting the same provision in Colorado.
The Atlanta and Colorado cases are among 91 such suits across the country that have targeted the contraceptive mandate, according to the Becket Fund for Religious Liberty, which represents Colorado’s Little Sisters of the Poor in the case pending before U.S. Supreme Court Justice Sonia Sotomayor.
The Atlanta litigation—where lawyers from Smith Gambrell & Russell and Jones Day represent the challengers—is among two dozen cases still awaiting preliminary rulings. In 52 cases, federal judges have granted injunctions sought by religious institutions or private companies that asserted religious objections to contraceptives. Judges have denied injunction requests in seven other cases. Eleven have been dismissed, according to the Becket Fund.
All echo claims made by the Colorado nuns, whom Sotomayor on Dec. 31 temporarily exempted from compliance with contraceptive coverage requirements that took effect Jan. 1.
Sotomayor, who handles emergency applications from the U.S. Court of Appeals for the Tenth Circuit, issued the temporary restraining order while the Little Sisters of the Poor—who lost at the district court level—await a ruling at the Tenth Circuit.
The Atlanta suit was filed in 2012 by the Roman Catholic Archdiocese of Atlanta, Archbishop Wilton Gregory, Christ the King Catholic School, the Roman Catholic Diocese of Savannah, and Bishop John Hartmayer.
The Affordable Care Act requires insurers to include preventive care for women. Those services include all FDA-approved contraceptive methods, including emergency contraceptives (also known as the “morning after” pill), sterilization procedures and associated education and counseling. Under the law, group health plans sponsored by some religious employers are exempt from the requirement to cover contraceptive services. A key question raised by the nationwide litigation is just how broadly those exemptions may extend.
The Atlanta challenge, now before U.S. District Court Judge William Duffey, is built on the same framework as the Little Sisters of the Poor case. The plaintiffs in both cases argue that the Affordable Care Act’s birth control mandates impermissibly interfere with the rights of religious institutions to practice the tenets of their faiths—namely faith-based objections to birth control, abortion and sterilization—without governmental interference. At the heart of the Atlanta suit is core Catholic doctrine—a belief “that sexual union should be reserved to married couples so committed to each other that they are open to the creation of life” and that “artificial interference with the creation of life,” whether through abortion, sterilization or contraception, contradicts those core beliefs, according to the Atlanta complaint.
In Atlanta, the plaintiff religious institutions are represented by Stephen Forte, a partner at Smith Gambrell, and Jones Day partners David Monde and Kendrick Smith.
U.S. Justice Department lawyers in Washington are defending the federal government in the litigation.
In an open letter to his Atlanta parishioners written Jan. 12, 2012, the Atlanta archbishop claimed, “The Administration has cast aside the First Amendment to the Constitution of the United States, denying to Catholics our Nation’s first and fundamental freedom, that of religious liberty. And as a result, unless the rule is overturned, we Catholics will be compelled either to violate our consciences or to drop health coverage for our employees (and suffer the penalties for doing so).”
On Wednesday, Forte sent the Daily Report a written statement on behalf of the Atlanta archdiocese in response to questions about its decision to sue. “The Archdiocese of Atlanta is keenly interested in protecting the religious freedoms of the Church, its affiliates, and related religious entities,” the statement said. “The challenge to the Government’s mandate on contraception, abortion and sterilization is essential to that interest. Simply put, the Government should not impose its will to insist on arbitrary rules that it knows will contravene longstanding, core religious beliefs.”
The Atlanta complaint seeks to draw a stark line between church and state, claiming that an “overbearing and oppressive” federal government, in attempting to force all Catholic-affiliated organizations to make contraception (including “abortion-inducing drugs”) and sterilization available, is violating church doctrine.
The plaintiffs are seeking a court order barring enforcement of the contraceptive rule as a violation of the First Amendment’s freedom of religion guarantee. They also contend that, under the law, organizations affiliated with religious institutions that do not qualify for exemptions would be subject to federal fines of $100 a day per covered individual. And, according to the suit, they fear that failing to comply with the contraceptive requirements could open them up to suits by the people they insure for their refusal to offer the required benefits.
The plaintiffs have acknowledged both that individuals have a legal right to contraceptive services under the law and nothing prevents the government from making them widely available at no cost. But they contend that the government cannot force religious institutions like the Catholic church to provide or even “facilitate access” to those services, either through third-party insurers or administrators of their employee health insurance plans.
To qualify for an exemption, according to the complaint, the plaintiff religious institutions must certify their objections in writing. That certification, in turn, “triggers an obligation on the part of plaintiffs’ third-party administrator to provide or procure those very same objectionable products and services for plaintiffs’ employees.”
The complaint acknowledges that certain religious employers are exempt from the contraceptive requirements. But it claims that new federal regulations define those exempt organizations too narrowly and force religious employers “to seek a determination from a government bureaucrat that they are sufficiently ‘religious’ before they can exercise their religious freedoms.”
Pleadings filed on behalf of the archdiocese also claim that the contraceptive requirement interferes with the church hierarchy’s ability to insure that affiliated institutions such as its charitable ministries and schools “adhere to church teaching through participation in a single health plan.”
The suit also claims the Atlanta and Savannah Catholic dioceses do not know if they qualify for exemption, adding that the government’s “narrow definition” of exempt religious institutions likely excludes the Atlanta archdiocese’s Catholic Charities and Christ the King School in Atlanta because they do not primarily employ or primarily serve only Catholics and impose no “religious litmus test” on more than 5,000 employees.
The suit also contends, “Before they can find out, they must submit to an intrusive and arbitrary governmental investigation into whether, in the discretionary view of the government, their ‘purpose’ is the ‘inculcation of religious values’; whether they ‘primarily’ employ ‘persons who share [their] religious tenets’ (even though they do not consider religious affiliation in hiring for most positions); and whether they ‘primarily’ serve such people even though their schools and programs are open to those of all faiths.”
The complaint also claims that the contraceptive requirements were proposed “as part of a conscious political strategy to marginalize plaintiffs’ religious views on contraception by holding them up for ridicule on the national stage.”
Government lawyers have countered that churches, church conventions or associations of churches that are exempt from federal income taxes—including the archdiocese of Atlanta and the Savannah diocese—are also exempt from the contraceptive mandate. They have also argued that religious-affiliated organizations such as Catholic schools and charities have been relieved of any responsibility to contract, arrange or pay for contraceptive coverage or services if they agree to certify their religious objections.
“The objecting employer does not bear the cost (if any) of providing contraceptive coverage; nor does it administer such coverage; nor does it contract or otherwise arrange for such coverage; nor does it refer for such coverage,” government lawyers contended.
The government also took issue with assertions by the plaintiffs “that the mere act of certifying that they are eligible for an accommodation is a substantial burden on their religious exercise because, once they make the certification, their employees will be able to obtain contraceptive coverage through other parties.”
“This extraordinary contention,” government lawyers argued, “suggests that plaintiffs not only object to contracting, arranging, paying, or referring for contraceptive coverage themselves, but also seek to prevent the women who work for their organizations from obtaining such coverage, even if through other parties.”
In court pleadings, government lawyers also contended that nothing in the regulations bars an exempt religious organization from expressing its opposition to the use of contraception.
“Ultimately, plaintiffs’ complaint is that their informing their [third-party administrators] of their intention not to provide contraceptive coverage to their employees no longer has the effect of preventing their employees from receiving such coverage,” the government contended. “Prior to the adoption of the challenged regulations, plaintiffs’ refusal to provide contraceptive coverage to their employees effectively meant that those employees went without it. In effect, plaintiffs had a veto over the health coverage that their employees received.”
“Now, plaintiffs no longer exercise such a veto over their employees’ health coverage. In other words, plaintiffs’ religious objection to offering and funding contraceptive coverage remains effective as to them, but their employees will receive such coverage from another source.”
But, they concluded, “Not only do plaintiffs want to be free from contracting, arranging, paying, or referring for contraceptive coverage for their employees … but plaintiffs also want to prevent anyone else from providing such coverage to their employees, who might not subscribe to plaintiffs’ religious beliefs.”
The Atlanta case is The Roman Catholic Archdiocese of Atlanta v. Sebelius, No. 1:12-cv-3489.