(Photo: Diego M. Radzinschi/NLJ)
A federal appellate court on Wednesday rejected requests by a group of Roman Catholic-related nonprofit organizations to block the contraceptive coverage requirement in the Affordable Care Act.
In consolidated appeals from Michigan and Tennessee, the three-judge panel of the U.S. Court of Appeals for the Sixth Circuit unanimously agreed with two district court judges that the groups had failed to show a strong likelihood of success on their claims that the coverage requirement violated the First Amendment, the Religious Freedom Restoration Act and the Administrative Procedure Act.
The panel denied requests for a preliminary injunction in Michigan Catholic Conference v. Burwell and Catholic Diocese of Nashville v. Burwell. In ruling on similar requests, the Seventh Circuit has denied and the D.C. Circuit has granted injunctions. There are 100 challenges to the coverage requirement pending around the country involving nonprofit and for-profit organizations, according to the Becket Fund for Religious Liberty.
In her opinion for the panel, Judge Karen Nelson Moore noted that the 10 organizations were eligible either for an exemption from the requirement or an accommodation whereby they would not pay for contraceptive products and services; the coverage would be independently administered by an insurance issuer or third-party administrator.
The panel in its 30-page opinion examined each of the claims to determine whether the organizations had shown irreparable harm and likelihood of success.
One claim contended that the exercise of religion is burdened by facilitating access to contraceptive coverage through a self-certification process that notifies the insurer that it, not the employer, must pay for the coverage.
“The government’s imposition of an independent obligation on a third party does not impose a substantial burden on the appellants’ exercise of religion,” Moore wrote. “It is not the act of self-certification that causes the insurance issuer and the third-party administrator to cover contraception, it is the law of the United States that does that.”
The panel also rejected the claim that the coverage requirement violates the free speech clause of the First Amendment by forcing the organizations to provide, pay for or facilitate access to contraception counseling; forcing them to speak against their beliefs by filling out the self-certification form; and imposing a “gag order” by prohibiting them from interfering with or seeking to influence a third-party administrator’s decision to cover contraception.
Moreover, the panel held there was no excessive entanglement of government and religion in violation of the establishment clause because the law provides exemptions for some organizations and accommodations for others.
“Because the exemption and accommodation arrangement distinguishes between entities based on organizational form, not denomination, it does not express an unconstitutional state preference on the basis of religion,” Moore wrote.
In addition to Moore, the panel included Judge John Rogers and U.S. District Judge John Nixon of the Middle District of Tennessee, sitting by designation.
Matthew Kairis, a partner at Jones Day, argued the appeal on behalf of the organizations. He said he and his clients were “considering all options” in the light of the ruling.
Contact Marcia Coyle at firstname.lastname@example.org.