The Catholic Benefits Association (“CBA”) is calling on the U.S. Department of Health and Human Services (HHS) and the Justice Department (DOJ) to make good on the President’s promises and drop their contraception mandate appeal before the Tenth Circuit’s July 31 deadline. Frustrated by the slow pace of the mandate’s repeal, the CBA recently filed a motion that reveals that HHS admits its mandate is illegal as applied to objecting religious employers. As such, the CBA argues, the court should dismiss the government’s appeal. The court has given the government until July 31 to “address with specificity” the CBA’s arguments and request for dismissal.
The CBA filed suit against HHS in March 2014 to protect its members from the government’s mandate, which forces CBA members to violate Catholic moral teaching by covering contraceptives, abortifacients, and sterilization procedures in employee health plans, under pains of crushing fines. Over 100 similar lawsuits have been filed by other religious employers. No government action in American history has ever resulted in more lawsuits by religious organizations.
A federal district court awarded the CBA a preliminary injunction in June 2014 after finding that the government’s efforts to enforce the mandate against CBA members were likely illegal under the Religious Freedom Restoration Act (“RFRA”). The government promptly appealed the CBA’s preliminary injunction to the 10th Circuit, but then asked the court to delay briefing and argument until the Supreme Court ruled on a similar lawsuit filed by the Little Sisters of the Poor.
The CBA’s new motion follows nearly three years of waiting for the government to argue its appeal. To date, the government has filed ten separate status reports with the court, each seeking to delay briefing further.
The CBA’s motion argues that there is nothing more to discuss in the government’s appeal because HHS has already conceded that the district court was right to issue a preliminary injunction and because President Trump has already committed to ending the religious liberty battle over the contraceptive mandate. On May 4, President Trump held a ceremony in the Rose Garden to announce his executive order “Promoting Free Speech and Religious Liberty.” With the Little Sisters of the Poor and dozens of other ministry leaders present, the President, referring to the contraceptive mandate, then declared “your long ordeal will soon be over . . . we are ending the attacks on your religious freedom.”
Weeks later, on May 23, HHS submitted to the White House a draft interim final rule that, if promulgated, would exempt CBA members and other objecting religious employers from the contraceptive mandate. HHS’s submission concludes that its mandate does not advance a compelling governmental interest and is unlawful as applied to objecting religious employers. But HHS’s draft has been subject to its own delays; more than two months later, it has still not been formally issued.
The CBA’s CEO, Douglas Wilson, is calling on the DOJ to drop its appeal by July 31.
“President Trump took an important first step by instructing these agencies to change their mandate and to protect religious liberty,” Wilson said. But he stressed that the government has failed to take any concrete steps since: “Eighty-three days have passed since the president’s promise, and yet HHS and the Justice Department have not yet acted to end our long ordeal of costly litigation and the threat of ministry-killing fines. HHS and DOJ need to follow President Trump’s lead by dropping their appeal by July 31. The CBA also calls on these departments to issue their new rule without change and without further delay.”
The CBA represents by far the largest plaintiff in the religious liberty battle over the contraceptive mandate, representing more religious employers than all of the other similar lawsuits combined. “The more than one thousand members of the Catholic Benefits Association have waited long enough,” says Wilson. “HHS has already admitted that its appeal has no basis. It is time for DOJ to drop its meritless appeal, and for HHS to issue its revised regulation.”
The Catholic Benefits Association is a group of employers committed to providing life-affirming health coverage consistent with Catholic teaching. It includes hospitals, colleges, religious orders, businesses, 60 archdioceses and dioceses, and around 4,000 parishes. For more information, see www.catholicbenefitsassociation.org.