ATLANTA — Today, the 11th Circuit Court of Appeals in Atlanta heard oral arguments in EWTN Global Catholic Network’s legal challenge to the federal contraception mandate.
“What the government is saying is that EWTN isn’t religious enough; it’s not entitled to the same religious freedom as the Catholic Church, which it serves,” Lori Windham, the lead attorney for EWTN and a senior counsel for the Becket Fund for Religious Liberty, told the three-judge panel at the 11th Circuit.
EWTN is the largest religious media network in the world, reaching more than 230 million television households in more than 140 countries and territories.
The network includes television, radio and a publishing arm, along with a website and both electronic and print news services, including the Register and Catholic News Agency.
The 11th Circuit judges pressed Windham to explain how the contraceptive mandate, which includes an accommodation for Catholic nonprofits like EWTN, failed to meet the high threshold established by the federal Religious Freedom Restoration Act (RFRA).
RFRA directs government not to enact laws that “substantially burden” religious freedom without a “compelling state interest.” If that “compelling state interest” test has been met, the government must choose the “least restrictive” means of advancing its interest.
Windham told the judges that the mandate violated EWTN’s “sincere religious belief” and put a “substantial burden” on the company by threatening the ministry with more than $12 million per year in fines, if it failed to comply with the law.
Judge R. Lanier Anderson then questioned Windham about the government’s “compelling interest” in curbing unintended pregnancies — the Health and Human Services Department’s stated purpose for the federal law — and the “adverse health outcomes that an unintended pregnancy” can bring.
Windham quickly reminded the judge that the government has exempted many other employers, but not religious nonprofits like EWTN that had undisputed faith-based beliefs opposing the use of contraception.
“Thirty-four million others are being exempted by the government,” she said.
Meanwhile, the health-care exchanges, established under the Affordable Care Act, which also authorized the contraceptive mandate, “could be made available to the 350 EWTN employees,” said Windham.
She asserted that the government had failed to effectively explain why it had not taken this path.
Finally, she noted that the government spent an estimated $300 million annually for family planning and concluded that the government could amend Title 10 regulations to provide EWTN employees with access to free birth control — another possible solution the Obama administration has not pursued.
EWTN does not object to the government offering these services to employees who want them, Windham emphasized. But the Catholic media company “objects to providing contraception on its insurance plans and objects to the government coming in and taking over a part of its insurance plan.”
The government’s accommodation for nonprofits like EWTN requires that the employer write a letter confirming that it wants to opt out for religious reasons.
But EWTN, and other Catholic employers like the Little Sisters of the Poor, argues that writing such a letter serves to trigger services it opposes on moral grounds.
The government has consistently challenged such legal arguments, and, while two of the 11th Circuit judges appeared sympathetic to EWTN’s free-exercise claims, they may still conclude that the government accommodation was adequate.
That said, John Manos, EWTN’s general counsel, said he was heartened by the judges’ questions and comments. Not only did they press the government lawyer to prove that the White House had no other option for providing the contraceptive services to EWTN, Judge Anderson also expressed concern that employees who objected to contraception had no opt-out plans available to them.
“News media talks about EWTN imposing its objections on women who want these services,” Manos told the Register.
“But there is another question: Where do individuals who don’t want to pay for this go to get their health insurance?”
The Legal Context
Back in 2012, EWTN was among the first Catholic nonprofits to file a legal challenge to the HHS mandate. That initial lawsuit was dismissed on technical grounds, and after it was filed again, a lower court ruled against EWTN.
The company obtained an emergency injunction from the 11th Circuit to shield it from financial penalties it would incur if it failed to comply with the mandate.
But while EWTN waited for its appeal to be heard by the circuit court, the U.S. Supreme Court issued a landmark free-exercise ruling in favor of a for-profit plaintiff, Hobby Lobby, in a key HHS mandate case.
Hobby Lobby’s victory has posed a fresh challenge to the Obama government, which had insisted that for-profit companies had no free-exercise rights. Hobby Lobby successfully argued that that the federal law, which had excluded for-profit companies from its narrow religious exemption, imposed a substantial burden on the company’s religious freedom.
But EWTN, like the Little Sisters of the Poor and other nonprofit plaintiffs in such cases, faces a slightly different and more challenging test. It must show that the government’s interim final rule, or accommodation — which does not require the media company to directly approve or pay for the mandated services — still violates its rights, as protected under RFRA.
During the oral arguments, Joshua Salzman, the Obama administration’s lawyer, argued that the White House accommodation was valid and EWTN had failed to prove that the provisions of the accommodate violated its religious freedom.
The government, said Salzman, had “bent over backwards to accommodate religious freedom.”
Questions for the Administration
Still, Judge Anderson pressed Salzman to explain why the White House could not provide an alternative path for EWTN employees to obtain contraception.
The government lawyer responded that women need to receive contraceptive coverage seamlessly, adding that, when health services are not readily available or cost money, usage goes down, and health problems increase.
Any alternative, he insisted, would not work, “because it [places] burdens upon the female employees of EWTN.”
Judge Gerald Tjoflat asked the lawyer if “the government policy covers all women.”
Salzman acknowledged not all women are covered, but said that the government is trying to cover everyone. The judge asked how many women were not covered, and Salzman hesitantly responded, “I suppose it’s millions.”
Judge Tjoflat wondered why so many women had not been reached, given the stated importance of access to contraception. He also questioned what would happen if an uninsured woman was forced to go to the marketplace for coverage but opposed the available health plans due to religious beliefs.
“I don’t have that information,” replied Salzman, who looked visibly shaken at the line of questioning.
Becket Fund senior counsel Mark Rienzi, who was present for the oral arguments, told the Register that the 11th Circuit panel appeared relatively sympathetic to EWTN’s claims and that the government lawyer was under pressure to defend the administration’s position.
It could take up to six months for the 11th Circuit to deliver its ruling. And Rienzi said it is very likely that one or more lawsuits brought by nonprofit plaintiffs could be decided by the Supreme Court — though not during the current term.
What’s at Stake
But as the 11th Circuit began its deliberations, Michael Warsaw, EWTN’s CEO, said the threat posed by the HHS mandate remains clear and unambiguous.
“This is about the broader issue of religious freedom,” Warsaw said.
“We have a right to be able to bring our faith to bear on everything we do, on every aspect of our lives,” he added. “And I think that’s what’s at stake here.”
Joan Frawley Desmond is the Register’s senior editor.
Michelle Fritz writes from Atlanta.
Catholic News Agency also contributed to this report.