NEW YORK — Last year, when a slew of Catholic dioceses and nonprofits began to file legal challenges against the Health and Human Services' contraception mandate in courts across the country, a May 27 New York Times editorial dismissed the lawsuits as “a dramatic stunt, full of indignation but built on air.”

But a year and a half later, a federal district judge in Brooklyn took a very different view of the merits of one HHS lawsuit filed on behalf of the Archdiocese of New York, the Diocese of Rockville Center and four Catholic nonprofits in the New York area.

On Dec. 13, Judge Brian Cogan ruled that the HHS mandate compelled the Catholic nonprofits “to perform acts that are contrary to their religion,” and he issued a permanent injunction that shielded two schools and two health-care systems from large fines that could be triggered by their refusal to comply with the controversial federal law.

It was the first time that a federal court acted to permanently bar enforcement of the controversial federal law in a case brought by religious nonprofit employers, who are not exempt under the final rule issued by the Obama administration, and the decision was celebrated by the Archdiocese of New York.

“The Archdiocese of New York welcomes and applauds Judge Brian Cogan’s thoughtful decision and order that holds that so-called non-exempt religious agencies have religious-freedom rights and are therefore not bound by the Affordable Care Act’s requirement to provide in their health-insurance plans coverage for contraceptives, abortifacients and sterilization, as well as counseling, as respects these objectionable products and services,” said the archdiocese’s spokesman, Joseph Zwilling, in a statement released after the decision.

“Ruling in favor of all non-exempt plaintiffs in the case — ArchCare, Cardinal Spellman and Msgr. Farrell high schools in the Archdiocese of New York, as well as Catholic Health Services of Long Island in the Diocese of Rockville Centre — the court held that the HHS contraceptive mandate of the Affordable Care Act violates the Religious Freedom Restoration Act.”

Father Trevor Nicholas, president of Cardinal Spellman High School, told the Register, “I am highly gratified by the decision, and I hope that any further decisions likewise go in our favor.”

However, Judge Cogan dismissed the legal challenges to the federal law brought by the Archdiocese of New York and the Diocese of Rockville, noting that they were already exempted under the final rule, whereas the Church-affiliated schools and health-care systems were offered an accommodation that the U.S. bishops have repeatedly rejected as unacceptable.

 

Coercing Religious Nonprofits

Related to the Church-affiliated schools and health-care systems, the court found that the HHS mandate violated provisions of the Religious Freedom Restoration Act (RFRA), which directs government to enact laws that don’t burden religious freedom without a “compelling” state interest for doing so. Further, RFRA states that when this compelling interest has been established, the least burdensome means must be used to advance it.

“The mandate burdens plaintiffs’ religion by coercing them into authorizing third parties to provide this coverage through the self-certification requirement, an act forbidden by plaintiffs’ religion,” stated Judge Cogan, noting provisions of the government’s “accommodation.”

“Government could provide the contraceptive services or insurance coverage directly to plaintiffs’ employees or work with third parties — be it insurers, health-care providers, drug manufacturers or nonprofits — to do so without requiring plaintiffs’ active participation,” read the ruling.

The White House has asserted that the HHS mandate is necessary for “the promotion of public health” and that the “accommodation” properly addressed the religious-freedom concerns. But Judge Cogan rejected those arguments.

Gerard Bradley, a constitutional scholar at the University of Notre Dame Law School, noted that Judge Cogan’s decision was “just the second victory by Catholic entities who would be subject to the Obama administration’s final ‘accommodation’ for non-exempted religious employers.”

“And this case is most heartening,” Bradley added, “because in it, the judge recognized that the Catholic plaintiffs objected to any material cooperation in the evils of contraception and abortion and that the mandate would not only pressure them to violate their consciences, but compel them to do so.”

 

New Legal Issue: Church Plans

Meanwhile, the case before Judge Cogan introduced another legal issue that had not previously received scrutiny in similar HHS cases.

The nub of the problem is that the plaintiffs are “self-insured” under a “church plan,” which typically excludes contraception, abortion and other services that violate Catholic moral teaching.

On Nov. 1, after almost 18 months of litigation, government lawyers noted that the plaintiffs had a “church plan,” and then they petitioned the court to dismiss the lawsuit, arguing that the plaintiffs lacked legal standing to challenge the mandate, as “the regulations will not actually force plaintiffs’ TPAs [third-party administrators] to provide coverage for the objectionable services.”

Judge Cogan explained the legal issue: “[T]he challenged regulations enforce the contraceptive-coverage requirements against the TPAs of eligible organizations with self-insured group plans through the Department of Labor’s ERISA enforcement authority. Church plans, however, are specifically excluded from the ambit of ERISA.”

Judge Cogan first expressed skepticism regarding the government’s suggestion that it had only just discovered that the plaintiffs were covered under a church plan and thus were not subject to enforcement of  the “accommodation.”

But he concluded that even if the government could not require religious nonprofits covered under church plans to comply with the HHS mandate, the plaintiffs’ legal challenge still had merit.

“Plaintiffs allege that their religion forbids them from completing this self-certification, because to them, authorizing others to provide services that plaintiffs themselves cannot is tantamount to an endorsement or facilitation of such services. Therefore, regardless of the effect on plaintiffs’ TPAs, the regulations still require plaintiffs to take actions they believe are contrary to their religion.”

Adele Keim, a lawyer with the Becket Fund for Religious Liberty, a public interest group that is representing a number of HHS plaintiffs, told the Register: “The court rejected the government’s argument and held that not only were the religious organizations entitled to be in court, they were entitled to protections under RFRA.”

The Becket Fund is representing EWTN in its legal challenge to the mandate. The Register is a service of EWTN.

Notre Dame’s Bradley noted that the findings in the case clarified that “church plans are exempt from ERISA,” and thus from providing services that violate their moral beliefs.

However, Bradley said he was not sure how broadly this church-plan exemption from the mandate would extend.

“Notre Dame [which has also filed suit against the HHS mandate] would not be saved by this,” he noted. “And it is clear that the government could close this loophole by shifting the enforcement mechanisms.”

Joan Frawley Desmond is the Register’s senior editor.