Judge blocks expansion of religious exemptions to contraceptive mandate

WASHINGTON, D.C. — A federal judge temporarily blocked the government from putting into effect new rules that would expand the exemption to the federal contraceptive mandate to the Little Sisters of the Poor and other religious employers.

Judge Haywood S. Gilliam Jr. of the U.S. District Court for the Northern District of California Jan. 13 granted a preliminary injunction sought by 13 states and the District of Columbia to stop the rules from taking effect Jan. 14.

Gilliam said the new rules were “not in accordance with the Affordable Care Act.”

Attorneys with Becket, a religious liberty law firm representing the Little Sisters of the Poor, immediately filed an appeal with the 9th U.S. Circuit Court of Appeals based in San Francisco.

The religious order and the March for Life Education and Defense Fund were permitted to join the case as “permissive intervenors.”

The sisters have been in the spotlight for several years because of their moral objection to the Department of Health and Human Services’ requirement that most employers, including religious employers, cover contraceptives, sterilization and abortion-inducing drugs in their employee health plans. The mandate was put in place by HHS under the ACA during the Obama administration.

The Trump administration subsequently introduced rules in October 2017 to expand the exemption to religious employers and presented final rules in November.

Lori Windham, an attorney with Becket, told Catholic News Service Jan. 14 that the religious order and her firm were awaiting a decision on a similar case pending in U.S. District Court for the Eastern District of Pennsylvania based in Philadelphia. That lawsuit, filed by Pennsylvania Attorney General Josh Shapiro and joined by the state of New Jersey, is seeking an injunction to block the rule from taking effect nationwide.

Mark Rienzi, Becket president, argued in favor of the rule Jan. 10 during a hearing in Philadelphia and flew cross country for a hearing Jan. 11 in federal court in Oakland, California.

Windham joined Rienzi in Pennsylvania to argue in support of the regulation. She said the pair told the court they believed the states have no right to challenge the regulation.

“They haven’t identified any woman who would be harmed by these rules,” she said. “The mandate lawsuits have been going on for a long time. The religious objects have gotten protection from the courts. So it’s pretty silly for states to show up now years later to all of a sudden say these people are going to be harmed.”

She also described the new rule as “sensible to protect religious freedom.”

Rienzi said in an email statement sent to CNS that Gilliam’s ruling “will allow politicians to threaten the rights of religious women like the Little Sisters of the Poor.”

“Now the Little Sisters have no choice but to keep fighting this unnecessary fight so they can protect their right to focus on caring for the poor. We are confident this decision will be overturned,” he said.

Gilliam’s decision is separate from a similar case filed to oppose the October 2017 rules. The 9th Circuit heard oral arguments in the case in October.

California Attorney General Xavier Becerra filed his case days after the rules were introduced in 2017 and again soon after the final rules were introduced in November. He has argued that women would lose employer-sponsored contraceptive coverage, “which will then result in economic harm to the states” as the women “turn to state-based programs or programs reimbursed by the state.”

Becerra also argued that the HHS ruling providing the religious exemption violates constitutional amendments because it allows employers to use religious beliefs to discriminate against employees and denies women their rights to equal protection under the law.

California, Delaware, Maryland, New York and Virginia joined in the first suit. They were joined by Connecticut, Hawaii, Illinois, Minnesota, North Carolina, Rhode Island, Vermont, Washington, Virginia and the District of Columbia in the most recent suit that led to Gilliam’s decision.

The Little Sisters of the Poor, through their attorneys, said their rights under the Religious Freedom Restoration Act would be violated if they were forced to comply with the mandate.

Becket lawyers have argued all along that the government has many ways to provide services to women who need them as well as protect the Little Sisters: “Neither the federal government nor the state governments need nuns to help them give out contraceptives.”