Yesterday, Judge Brian Cogan of the United States District Court for the Eastern District of New York, not only struck down
Obamacare's contraception mandate as applied to religious non-profit
organizations, but also sent a strong signal that federal courts were
losing patience with President Obama's many stitches of executive power.
Previous courts had ruled against President Obama's contraception mandate as applied to for-profit entities (see Sebelius v Hobby Lobby),
but this was the first court to hold that participating in Obama's
scheme to provide free birth control is a substantial burden on the free
practice of religion (specifically the Catholic Archdiocese of New York
and its affiliate organizations).
contraception mandate "directly compels plaintiffs, through the threat
of onerous penalties, to undertake actions that their religion forbids,"
Cogan wrote. "There is no way that a court can, or should, determine
that a coerced violation of conscience is of insufficient quantum to
merit constitutional protection."
Judge Cogan wrote:
but very significantly, the Government’s belated revelation that the
regulations do not even require plaintiffs’ TPAs to provide
contraceptive coverage fatally undermines any claim that imposing the
Mandate on these plaintiffs serves a compelling governmental interest.
To demonstrate a compelling interest in remedying an identified harm,
defendants must show “that the regulation will in fact alleviate these
harms in a direct and material way.” Turner Broadcasting Sys., Inc. v.
F.C.C., 512 U.S. 622, 664, 114 S. Ct. 2445, 2470 (1994). Here, the
Government implicitly acknowledges that applying the Mandate to
plaintiffs may in fact do nothing at all to expand contraceptive
coverage, because plaintiffs’ TPAs aren’t actually required to do
anything after receiving the self-certification. In other words,
the Mandate forces plaintiffs to fill out a form which, though it
violates their religious beliefs, may ultimately serve no purpose
whatsoever. A law that is totally ineffective cannot serve a compelling
Nor is the Mandate the least restrictive
means by which the Government can improve public health and equalize
women’s access to healthcare. “A statute or regulation is the least
restrictive means if ‘no alternative forms of regulation would
[accomplish the compelling interest] without infringing [religious
exercise] rights.’” Kaemmerling, 553 F.3d at 684 (quoting Sherbert, 374
U.S. at 407). At this point, it is important to recall the nature of the
burden on plaintiffs’ religion. The Mandate does not burden plaintiffs’
religion because it allows their employees to receive and use
contraception at no cost; indeed, “it goes without saying that
[plaintiffs] may neither inquire about nor interfere with the private
choices of their employees on these subjects.” Korte, 735 F.3d at 684. Rather,
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. [emphasis added]
Here is a PDF of the judge's ruling.
The Archdiocese of New York released a statement yesterday:
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.
in favor of all non exempt plaintiffs in the case ArchCare, Cardinal
Spellman and Monsignor 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. The court granted summary judgment and a permanent injunction to
these non exempt plaintiffs protecting them from enforcement of the
part of its ruling, the court dismissed similar claims from the
Archdiocese of New York and the Diocese of Rockville Centre, as the
court ruled that they were already protected from the contraceptive
mandate by virtue of being exempt religious organizations under
regulations issued by HHS.
issue were the final mandate rules promulgated by HHS, which
effectively split religious organizations into two classes: those who
were protected under a narrow religious exemption primarily dioceses
and houses of worship and those faith-based health care entities,
charitable agencies, religious schools, and other faith-based entities
which did not fit into this narrow definition established by the
government. As to this second class of faith based organizations, the
final rules required these non exempt religious organizations to violate
their consciences and cooperate in providing contraceptive coverage by
“self certifying” their religious objections thereby triggering their
third party plan administrators to provide the contraceptive coverage.
In ruling that this self certification and so-called “accommodation”
procedure violates federal law, the decision makes clear that these non
exempt entities would suffer “injury” because “the Mandate renders them
complicit in a scheme aimed at providing coverage to which they have a
court has correctly cut through the artificial construct which
essentially made faith-based organizations other than churches and other
houses of worship second class citizens with second class First
Amendment protections. Religious freedom is our “First Freedom,”
guaranteed in the Constitution of the United States. This decision
wisely and properly affirms that this freedom must extend beyond merely
being free to choose how we worship, and must include how we act in
accord with our religious beliefs.