Religious nonprofits win relief from Alito over contraception mandate
By Marcia Coyle, From The National Law Journal
In late-night order, justice temporarily stays Third Circuit ruling.
A group of Pennsylvania religious nonprofits, challenging contraceptive insurance under the federal health care law, won temporary relief from an appellate court ruling after action by Justice Samuel Alito Jr. on April 15.
In a late night order, Alito blocked the decision of the U.S. Court of Appeals for the Third Circuit in Zubik v. Burwell and directed the government to respond by April 20. Alito’s order stopped the appellate court ruling from taking immediate effect and it stayed it pending the government’s response and further action by him or the full court.
The Roman Catholic bishops of dioceses in Erie and Pittsburgh, along with their affiliated organizations, contend the government’s accommodation of their opposition to providing contraceptive insurance—a self-certification form opting out of the coverage requirement—”authorizes, obligates, and incentivizes” their third-party insurance administrators to provide the objectionable coverage.
In their application to Alito, they told the justice that “signing such a form or letter facilitates moral evil. This is true whether or not applicants pay for the objectionable coverage.”
In February, a three-judge appellate panel unanimously held that the submission of the self-certification form did not substantially burden the religious nonprofits’ exercise of religion in violation of the Religious Freedom Restoration Act.
“First, the self-certification form does not trigger or facilitate the provision of contraceptive coverage because coverage is mandated to be otherwise provided by federal law,” Judge Marjorie Rendell wrote for the panel. “Federal law, rather than any involvement by the appellees in filling out or submitting the self-certification form, creates the obligation of the insurance issuers and third-party administrators to provide coverage for contraceptive services.”
The panel also rejected arguments that it was not merely the filing of the form that imposed a burden, but, rather, what follows from it. “But free exercise jurisprudence instructs that we are to examine the act the appellees must perform—not the effect of that act—to see if it burdens substantially the appellees’ religious exercise,” Rendell wrote. “Even if we were to conclude that there is a burden imposed on the appellees’ religious exercise, we would be hard-pressed to find that it is substantial.”
The Third Circuit denied en banc review on April 6.
Representing the religious nonprofits, Jones Day’s Paul Pohl told Alito that dozens of similar cases involving hundreds of plaintiffs are pending in district and appellate courts.
“Applicants here are the only ones currently exposed to millions of dollars in fines for exercising their faith,” Pohl wrote. “The equities strongly favor preserving the status quo and protecting [the] applicants’ religious exercise pending resolution of their petition for certiorari. Indeed, that is why enforcement of the mandate has been enjoined in nearly thirty cases considering the mandate’s application to nonprofit entities like [the] applicants.”
IMAGE: Samuel Alito. Photo: Diego M. Radzinschi/NLJ
