August 28, 2015
WASHINGTON – The 6th U.S. Circuit Court of Appeals has ruled that the religious rights of Catholic Charities of Tennessee, Aquinas College and other Church-run organizations are not substantially burdened by a process created by the federal government for opting out of a mandate to provide contraceptive coverage due to religious objections.
With its Aug. 21 ruling, the Cincinnati-based Sixth Circuit became the seventh federal appeals court to rule against nonprofit religious organizations that argued that the contraceptive mandate and the opt-out system violate their religious rights. No appeals courts have ruled otherwise.
On the same day, the 10th U.S. Circuit Court of Appeals ruled the Little Sisters of the Poor and fellow plaintiffs need not comply with its July ruling against them while the sisters appeal to the U.S. Supreme Court. The 10th Circuit had ruled July 14 that the Little Sisters are not substantially burdened by the process set out by the Department of Health and Human Services by which they can avoid requirements to provide contraceptive coverage to employees as mandated by the Affordable Care Act.
The 6th Circuit consolidated challenges to the law by the Michigan Catholic Conference; Catholic Charities of the Diocese of Kalamazoo, Michigan; the Diocese of Nashville, Catholic Charities of Tennessee; Camp Marymount of Fairview, Tennessee; Mary, Queen of Angels, an assisted living center in Nashville; St. Mary Villa, a Nashville child development center; and the Dominican Sisters of St. Cecilia and Aquinas College, both of Nashville.
The agencies originally had challenged the Affordable Care Act’s mandate that all employers provide insurance coverage for contraceptive medications and procedures free of charge to employees.
HHS later issued an accommodation for religiously-affiliated organizations that objected to providing the coverage on religious grounds. Under the accommodation, such organizations can file a form with HHS or send a letter simply saying they intend not to provide the coverage. At that point, other systems kick in for providing employees with contraceptive insurance, with no further effort or cost to the religious employers.
No circuit court of appeals has granted an exemption since the Supreme Court’s June 2014 ruling that the owners of the Hobby Lobby craft store chain and similarly situated, closely held, for-profit companies are entitled to be exempt from the contraceptive requirement. The appeals courts ruled in light of the Hobby Lobby decision, finding that unlike the for-profit organizations, the nonprofits had a viable alternative in what HHS calls an accommodation for them and that it does not infringe on their religious rights.
The 6th Circuit had previously declined to grant the Tennessee and Michigan organizations injunctions to block enforcement of the contraceptive provision. In its 24-page opinion reconsidering the cases in light of Hobby Lobby, the 6th Circuit said the two dioceses and the Dominican Sisters of St. Cecilia are exempt from the requirement under HHS rules. The other organizations’ religious objections can be accommodated within the HHS accommodation process, it said.
“I was very disappointed with the decision of the 6th Circuit, not totally surprised, nonetheless disappointed that they ruled against us,” said Bishop David Choby of Nashville. “I think the ruling indicates an approach to religious freedom that is troublesome. …
“What they supported as a solution is what has been referred to as an accommodation in which medications and procedures are provided indirectly by Catholic institutions by signing a document that indicates to insurance carriers that those areas that are contrary to Catholic teaching are to be provided by the insurance carriers,” Bishop Choby said. “That problematic approach still raises the question of the Church’s cooperation in providing procedures and medications that are either disruptive to the potential for life or in some cases even destructive of life itself.
“It raises the questions of what’s next,” he added. “If the Church is required even indirectly to provide for these services, would the Church be required to provide coverage for things like tubal ligation or abortion itself?
“It seems to undermine the fundamental principle of religious freedom and the Church’s right to live the faith as the Church understands it and the Church teaches it,” Bishop Choby said.
“When the definition or acknowledgement of the principle of religious freedom is responded to by an approach called accommodation, it could seem to indicate the teachings and moral principles of the Church are not directly supported or appreciated … but they are granted some sort of favor … that the government deigns to recognize or extend and acknowledge as a freedom” rather than a freedom explicitly protected in the U.S. Constitution, Bishop Choby said.
“Additionally, it is confounding and confusing how different appellate courts can come to different positions on the question,” he said. “Recently dioceses in the state of Pennsylvania were given a decision in response to their own petition which recognized this freedom not to provide services contrary to Catholic moral principles.
“Ultimately, because there are differing rulings in courts of appeal the question will most likely be determined or answered by the U.S. Supreme Court,” Bishop Choby said.
He is still consulting with attorneys about whether to appeal the 6th Circuit’s decision to the Supreme Court.
The Diocese of Nashville and the other Tennessee agencies are represented in the case by the Jones Day law firm, which is representing several Catholic interests around the country for free.
The 100-word order of the 10th Circuit granted the stay requested by the Little Sisters, Southern Nazarene University and Reaching Souls International, pending the Supreme Court’s consideration of their petitions for appeal. The Supreme Court is not expected to announce the outcome of petitions for certiorari, as requests for the court to accept cases on appeal are called, until close to the start of its new term in early October.
The religious nonprofit organizations in the cases do not meet the HHS requirements for an exemption granted to institutions such as churches and dioceses that are primarily involved in inculcating the faith and primarily serve and employ people of the same faith.
Andy Telli contributed to this report.