The Waiting Game

Religious nonprofits including Legatus are waiting to see what the federal government’s next step will be regarding the U.S. Department of Health and Human Services’ controversial mandate that employers provide contraceptive coverage in their employee health plans.

The Little Sisters of the Poor and their supporters
rally in front of the U.S. Supreme Court

On July 22, the Internal Revenue Service, U.S. Department of Labor and HHS published a five-page document in the Federal Register opening a 60-day public comment period for anyone to suggest changes in how seamless contraceptive coverage can be provided while respecting the rights of religiously affiliated organizations.

The deadline for public comment is Sept. 20.

“After that, we’ll have a better idea of the direction the federal government is going,” said Kate Oliveri, an attorney with the Thomas More Law Center, which is representing Legatus in its lawsuit challenging the federal government’s contraceptive mandate.

Waiting period

Legatus’ lawsuit — Legatus v. Sebelius — is currently on hold in the U.S. District Court for the Eastern District of Michigan. Legatus is pretty much in the same position as dozens of other religious nonprofits that have challenged the mandate in federal courts.

Kate Oliveri

“We’re in a waiting period,” Oliveri said.

On May 16, the U.S. Supreme Court, after hearing arguments in Zubik v. Burwell, vacated several lower court decisions and remanded 35 cases back to the federal appellate courts with instructions that the federal government and the religious nonprofits work out an arrangement to provide contraceptive coverage while preserving the plaintiffs’ religious liberty rights.

In Zubik — a consolidated case that included Thomas Aquinas College, The Catholic University of America and the Little Sisters of the Poor as plaintiffs — the high court in its unanimous 8-0 decision did not take any position on the merits on the arguments, though it noted in the supplemental briefs it had earlier requested that both the petitioners and the federal government confirmed that contraceptive coverage could be provided to employees without directly involving the religious employers.

“The court basically said, ‘We think you guys can come to some compromise so we’re not going to decide if there is a burden on religious liberty or if the regulations satisfy the test for the Religious Freedom Restoration Act,’” said Oliveri, who described the court’s decision not to make a final ruling as “very unusual.”

Religious liberty

Little Sisters of the Poor wave to supporters
at the U.S. Supreme Court on May 16

Since 2012, religious nonprofits like Legatus have been challenging the federal mandate that employers provide, without copays, all federally approved forms of birth control in their health insurance plans. Those methods include abortifacient pills, so-called emergency contraceptives and sterilization.

The Obama administration has amended the mandate several times. In July 2015, the administration finalized its so-called accommodation for religious non-profits to notify the Department of Health and Human Services in writing about their objections to contraceptive coverage. The written notification would then trigger HHS to inform the insurers and third-party administrators, with separate payments then being made to enrollees for the coverage.

The religious nonprofits objected to this “accommodation,” arguing it still makes them complicit and hijacks their health insurance plans in the scheme to provide morally objectionable contraceptive services.

Michael McLean

“It’s not really an accommodation. It doesn’t protect religious liberty, and it doesn’t allow us to conduct our business affairs in full accord with the teachings of the Church,” said Michael McLean, president of Thomas Aquinas College in Santa Paula, Calif.

McLean, a member of Legatus’ Ventura/LA North Chapter, said the Supreme Court’s decision in Zubik v. Burwell gave TAC and other nonprofits hope that an acceptable compromise could be reached. But he said negotiations between the college’s attorneys and the federal government have not been productive.

“The government has been very slow to respond and has shown little interest in working out an agreement,” said McLean, who speculated that the government’s negotiators may be dragging their feet to buy time until the November elections with hopes that Democrat Hillary Clinton will be elected and eventually tilt the high court in a more liberal direction.

“I’ve been kind of disappointed and somewhat disillusioned, frankly,” McLean said. “I thought the parties would take the court’s encouragement very seriously and work out a compromise, and so far I don’t see any evidence of that — except on our side of course.”

John Garvey

John Garvey, president of The Catholic University of America, also said he’s surprised that more progress hasn’t been made in the negotiations.

“It didn’t seem to be a very complicated thing. The proposal we made in our supplemental brief laid out a course that seemed to us to be squarely in line with what the court was asking from us,” said Garvey, who explained that an acceptable proposal would be for the health insurer to set up a contraception-only policy, which employees could enroll in without the participation of the employer.

Garvey, a founding member of Legatus’ Washington D.C. Chapter, said he is keeping his fingers crossed that a compromise can be reached. He said the Supreme Court’s decision was probably the best outcome the religious nonprofits could have hoped for.

“I wouldn’t call it validation, but at least it doesn’t validate the contrary position,” Garvey said. “For now at least, we’re back to where we started.”

BRIAN FRAGA is a Legatus staff writer.