With more than 80 lawsuits and 200-plus plaintiffs, the ongoing legal fight over the HHS contraceptive mandate long ago surpassed the attention span of many laypeople. But things are getting interesting as observers wait to see which case will soon be picked up by the U.S. Supreme Court. (Smart money says Hobby Lobby.)
Most of the action has been on the for-profit side (43 cases and counting), where—out of the 38 lawsuits decided on the merits of their complaints—32 have secured temporary bans against the mandate's enforcement and 6 have been denied, according to a helpful scorecard kept by the Becket Fund for Religious Liberty. (Most recently, the D.C. Court of Appeals issued an important but nuanced ruling in what Religion Clause's Howard Friedman calls the government's test case, Gilardi v. HHS.)
But yesterday saw one of the first rulings to address the merits of lawsuits by nonprofit plaintiffs (39 cases and counting), notes Religion Clause, which has helpfully chronicled the mandate's twists and turns. (Most decisions on nonprofit cases thus far have involved questions of timing or procedure.)
In Zubik v. Sebelius, a federal district court in Pennsylvania ruled the Catholic Diocese of Pittsburgh and fellow plaintiffs were likely to successfully show that the mandate's final rules still violate the Religious Freedom Restoration Act. The Pittsburgh Post-Gazette, offering more details, summarized the decision thus: "The right of church-related organizations to keep a clear conscience trumps the federal government's desire to improve access to contraceptives."
Friedman highlights the relevant section of the preliminary injunction:
[A]lthough the "accommodation" legally enables Plaintiffs to avoid directly paying for the portion of the health plan that provides contraceptive products, services, and counseling, the "accommodation" requires them to shift the responsibility ... onto a secular source. The Court concludes that Plaintiffs have a sincerely-held belief that "shifting responsibility" does not absolve or exonerate them from the moral turpitude created by the "accommodation"; to the contrary, it still substantially burdens their sincerely-held religious beliefs.....
But even more interesting is the court's assessment of how the contraceptive mandate's "exemption" and "accommodation" bifurcates religion into two parts. Friedman highlights the court's conclusion:
The net effect ... would be to allow the Government to cleave the Catholic Church into two parts: worship, and service and "good works," thereby entangling the Government in deciding what comprises "religion."
Appeals courts have recently disagreed on whether for-profit corporations with religious owners are allowed free exercise of religion under RFRA. The Seventh Circuit and Tenth Circuit say yes. But the Sixth Circuit and Third Circuit say no. (Rulings have been split, with dissenting arguments worth reading.)
CT has reported more than you care to read about important legal developments regarding the contraceptive mandate.