EWTN gets last-minute stay on HHS mandate after Hobby Lobby decision

Late yesterday, the first fruits of the Hobby Lobby decision fell into the lap of EWTN, the Catholic satellite television station which has fought the HHS mandate into the appellate court. Today would have been the first day that EWTN would have to start paying ruinous fines for refusing to provide free contraception and sterilization in its health insurance coverage. Fortunately, the Eleventh Circuit granted a stay not long after the Supreme Court ruled in favor of Hobby Lobby:

In a resounding victory for religious freedom, today EWTN was granted last minute relief from the Eleventh Circuit Court of Appeals, one day before the world’s largest religious media network would be forced to violate its deeply help religious convictions or pay crippling fines to the IRS on July 1.

After the district judge recently issued a disappointing ruling against the global Catholic media network, the Becket Fund for Religious Liberty filed an emergency appeal to the Eleventh Circuit. Pending that ruling, the Becket Fund urged the Supreme Court and the Eleventh Circuit to step in to protect EWTN from being forced to provide contraceptives and potentially life-terminating drugs and devices that violate its Catholic teachings. Thanks to the Eleventh Circuit’s decision today to grant temporary emergency relief to the Catholic network, EWTN can now freely practice what it preaches while it pursues its claims in court.

“On the same day as the Hobby Lobby decision, the Eleventh Circuit protected religious ministries challenging the same government mandate,” said Lori Windham, Senior Counsel at the Becket Fund. “It’s time for the government to stop fighting ministries like EWTN and the Little Sisters of the Poor, and start respecting religious freedom.”

“We are thankful that the Eleventh Circuit protected our right to religious freedom while we pursue our case in court,” said EWTN Chairman and CEO Michael P. Warsaw. “We want to continue to practice the same Catholic faith that we preach to the world every day.”

The order itself is worth reading. The official unanimous order from the three-judge panel officially states that “we express no views on the ultimate merits of EWTN’s appeal in this case,” but that’s not true for Judge Pryor. In a 28-page concurrence, Pryor goes on at length as to why EWTN is likely to prevail on the merits of the case. And in doing so, Pryor takes particular aim at the so-called “accommodation” cited in Hobby Lobby and the arrogance of government instructing Catholic institutions on theology.

The Network has asserted, without dispute, that it “is prohibited by its religion from signing, submitting, or facilitating the transfer of the government-required certification” necessary to opt out of the mandate. The Network further asserts that, by requiring it to deliver Form 700 to the third-party administrator of its health insurance plan, the United States has forced the Network “to forego religious precepts” and instead, contrary to Catholic teachings, materially cooperate in evil. Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004). If it fails to deliver that form, the Network faces $12,775,000 in penalties a year. 26 U.S.C. § 4980D(b)( 1). If that is not a substantial burden on the free exercise of religion, then it is hard to imagine what would be. …

It is neither our duty nor the duty of the United States to tell the Network that its undisputed belief is flawed. See Burwell v. Hobby Lobby Stores, Inc., No. 13-354, slip op. at 36-37 (U.S. June 30, 2014). The Supreme Court has instructed that “it is not for us to say that the line [drawn by the religious believer] was an unreasonable one. Courts should not undertake to dissect religious beliefs. . . .” Thomas v. Rev. Bd. of the Ind. Emp ‘t Sec. Div., 450 U.S. 707, 714, 101 S. Ct. 1425, 1430 (1981). The United States flouts that instruction by treating an undisputed religious belief as a disputed question of law. But “it is not for us to say that [the Network’s] religious beliefs are mistaken or insubstantial.” Hobby Lobby, No. 13- 354, slip op. at 37. We must instead “determine whether the line drawn [by the Network] reflects an honest conviction, and there is no dispute that it does.” Id. at 37-38 (internal quotation marks and citation omitted).

Pryor also takes aim at other appellate circuit decisions in similar cases denying injunctive relief in the basis of the accommodation, calling their reasoning “rubbish”, emphasis mine:

I part ways with the Sixth and Seventh Circuits, which have denied injunctions in similar appeals, because the decisions of those courts are wholly unpersuasive. See Mich. Catholic Conference & Catholic Family Servs. v. Burwell, Nos. 13-2723, 13-6640, 2014 WL 2596753 (6th Cir. June 11, 2014); Univ. of Notre Dame v. Sebelius, 743 F.3d 547 (7th Cir. 2014). Both courts decided that the mandate imposes an independent obligation on the third-party administrator and that independent obligation does not constitute a substantial burden on the plaintiffs’ exercise of religion. Mich. Catholic Conference, 2014 WL 2596753, at *10; Univ. of Notre Dame, 743 F.3d at 552 (“[The University] has no right to prevent other institutions, whether the government or a health insurance company, from engaging in acts that merely offend the institution.”). Form 700, those courts held, does not “trigger” contraceptive coverage.

Rubbish. Even if the form alone does not “trigger” coverage-whatever that means-it is undeniable that the United States has compelled the Network to participate in the mandate scheme by requiring the Network not only to sign but also to deliver the form to its third-party administrator of its health insurance plan. The Network must sign a form that, on its face, states that the Network’s delivery of it is required “in order for the plan to be accommodated with respect to the contraceptive  coverage requirement.” EBSA Form 700-Certification, Dep’t of Labor, http://www.dol.gov/ebsa/preventiveserviceseligibleorganization/certificationform.doc (all Internet materials as visited June 30, 2014, and available in Clerk of Court’s case file). And why must the Network provide Form 700 to its administrator? Because without the form, the administrator has no legal authority to step into the shoes of the Network and provide contraceptive coverage to the employees and beneficiaries of the Network. 78 Fed. Reg. at 39,879-80 (“[A] plan administrator is defined in ERISA section 3( 16)(A)(i) as ‘the person specifically so designated by the terms of the instrument under which the plan is operated’ . . . . [T]he self-certification is one of the instruments under which the employer’s plan is operated. . . . The self-certification . . . will be treated as a designation of the third party administrator( s) as plan administrator and claims administrator for contraceptive benefits pursuant to section 3( 16) of ERISA.”).

Form 700 is “more than an inconvenience on religious exercise” because it “requires participation  in an activity prohibited by religion.” Midrash Sephardi, 366 F.3d at 1227 (emphasis added). To be sure, federal law requires contraceptive coverage whether or not the Network signs the form. But the problem in this appeal is that federal law compels the Network to act. That participation, the Network has declared, without dispute, makes it complicit in a grave moral wrong according to the teachings of the Catholic Church.

Read it all. Granted, this is one jurist’s concurrence in a temporary injunction, but the argument shows with crystal clarity why the “accommodation” does nothing to reduce the burden on free religious expression for EWTN or any other faith-based organization.

This kind of substantial burden can only be sustained, under both the First Amendment and especially the RFRA, by a compelling state interest and only by the least restrictive method possible. This fails both tests. There is no crisis in access for contraception as the government’s own CDC data clearly demonstrates, and the government has a wide range of options short of compelling others to directly provide it, including paying for contraception itself.

Debra Saunders has some wise counsel, especially to an administration that’s supposedly all about choice:

How did women get birth control before President Barack Obama’s Affordable Care Act? Before Obamacare, a woman could go to a doctor and get birth control. She often had to pay or make a copayment for contraception. But in the 2014 political lexicon, that means she had no access. …

Here’s a radical idea: If Washington wants to make birth control free, let Washington pay for it.

Here’s another radical idea: To paraphrase the U.S. Constitution, let Washington pass no regulations prohibiting the free exercise of religion.

The whole push for reproductive rights started as a quest to establish a woman’s right to choose. Now family-owned corporations have choice, too.

Everyone had plenty of choice before ObamaCare, too. It’s only in ObamaCare that businesses such as Hobby Lobby and organizations such as EWTN have found choice stripped from them in the command economy imposed by the ACA and by HHS.