This case is one of the many filed in federal district courts across the country by non-profit Catholic organizations challenging the ACA's system for ensuring that employee health insurance covers birth control. Specifically, the plaintiffs objected to notifying the government or their health insurer that they were claiming a religious exemption from the ACA regulation's mandatory insurance coverage for contraception. The current regulatory accommodation allows religious organizations who object for religious reasons to providing contraceptive coverage for their employees to notify their insurer, or notify the government directly, of that objection. Then, the government will work with the insurer or health benefits provider to ensure the employees have access to contraception. The religious employers claim that this approach violates the Religious Freedom Restoration Act, because they see their action of notifying the government as starting a chain of events that results in their employees receiving contraception.
This particular lawsuit was filed by Bishop Zubik of the Roman Catholic Diocese of Pittsburgh, and the Catholic Charities of the Diocese of Pittsburgh. (Their first litigation effort, filed in 2012, was dismissed as unripe. See Zubik v. Sebelius [I]
for that first case.)
After the current regulations were finally issued in 2013, the plaintiffs filed this second lawsuit in the Western District of Pennsylvania on October 8, 2013. On October 8, 2013, the plaintiffs also filed a motion for expedited preliminary injunction asking the court to enjoin issuance, application, and enforcement of the contraception mandate's self-certification procedures. On November 21, 2013, the court (Judge Arthur J. Schwab) granted the plaintiffs' motion for expedited preliminary injunction. 983 F.Supp.2d 576. The court held that complying with the certification requirement contraception mandate would cause injury to the plaintiffs' religious liberties and that there was a high likelihood of success on the merits of the RFRA and First Amendment claims. On December 20, 2013, Judge Schwab granted the plaintiffs' unopposed motion to convert the preliminary injunction into a permanent injunction. 2013 WL 6922024. The court recognized that the while the Diocese itself was exempt from the contraception mandate as a religious employer, the new regulation required the remaining affiliated organizations to tell the government about their religious objection to contraception. The Court held that the remaining plaintiffs demonstrated a reasonable likelihood of success on their RFRA challenge, noting that requiring self-certification represented a substantial burden on their religious exercise by compelling them to start the chain of events that ends with contraceptive products and services being provided to their employees. The Court was concerned that the Church and its affiliated nonprofits had different responsibilities under the mandate.
On February 11, 2014, the government appealed the permanent injunction. This case was consolidated on appeal with Geneva College v. Sebelius
and Persico v. Sebelius
. On February 11, 2015, the Third Circuit (Judge Marjorie Rendell) reversed the injunction in an order that applied to all the consolidated cases, holding that the accommodation to the contraceptive services mandate does not significantly burden the religious expression of the nonprofit entities affiliated with the churches in this case. 778 F.3d 422
On April 5, 2015, in an order that applied to this case and Persico v. Sebelius, the Third Circuit denied the plaintiffs' petition for rehearing en banc. On April 15, 2015, the Third Circuit denied the plaintiffs' motion for stay pending petition for writ of certiorari. On April 16, 2015, the Supreme Court granted a stay pending a response to the plaintiffs' petition for writ of certiorari. 135 S. Ct. 1544.
On November 6, 2015, the Supreme Court granted certiorari in this case on the issue of whether notifying the federal government by signing a form identifying the employer as a religious nonprofit that objected to the contraceptive services mandate violated the RFRA, or, rather, satisfies that statute's standard as the least restrictive means of achieving a compelling government interest. 136 S.Ct. 444. This case was consolidated with six other cases dealing with this issue: Priests for Life v. Sebelius
, Southern Nazarene University v. Sebelius
, Geneva College v. Sebelius
, Roman Catholic Archbishop of Washington v. Sebelius
, East Texas Baptist University v. Sebelius
, and Little Sisters of the Poor Home for the Aged v. Sebelius
This case was argued on March 23, 2016. On March 29, 2016, in an unusual move, the Supreme Court directed the parties to file supplemental briefs suggesting a solution to their disagreement, in which employees could still receive contraception coverage without employers giving any notice to the government. On May 16, 2016, the Court issued a per curiam order remanding all seven cases to their respective courts of appeals, ordering the lower courts to give the parties time to come to agreement on an approach that that "accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans 'receive full and equal health coverage, including contraceptive coverage.'" 136 S.Ct 1557, 1560. The Court took no position on the merits of this case. This case is now being considered on remand by the Third Circuit. Richard Jolly - 03/10/2014
Kate Craddock - 06/06/2016