Federal court rejects Catholic challenge to the contraceptive mandate

The D.C. Circuit Court of Appeals gave a victory today to the Obama administration in the first circuit-level verdict on the latest contraceptive and abortifacient mandate for nonprofits.

The D.C. Circuit ruled against 11 Catholic plaintiffs, including Catholic University, the Archdiocese of Washington, D.C., and Priests for Life. As a church, the Archdiocese is completely exempt from the mandate but joined the case because it sponsors health plans for its affiliated nonprofits who are under the mandate. The ruling declared constitutional the administration’s “accommodation” for nonprofits under the mandate.

Judge Nina Pillard, whom President Barack Obama recently and controversially appointed to the court, wrote the 86-page opinion. Pillard in law articles before becoming a judge made her position in favor of abortion clear: She has written that the right to abortion frees women from “conscription into maternity.”

Initially, the three-judge panel handling the Catholic plaintiffs’ challenge was made up of two Republican appointees and one Clinton appointee. That panel granted a temporary injunction to the Catholics, pending appeal. But in March the panel switched to a different Clinton appointee and two recent Obama appointees. The selection of panels for circuit courts is not a transparent process, but it is supposed to be random.

That was all before August when the Obama administration issued its final revision to the many-times-revised mandate. In the final version, nonprofits that object to covering contraceptives and abortifacients in their employee health insurance plans must send a letter notifying the the Department of Health and Human Services (HHS) of their objection. The nonprofits must also provide their insurance information so HHS can arrange coverage for employees.

The Catholic plaintiffs argued that rule still forced them to assist in the provision of objectionable drugs. The letter to HHS functions as a “trigger,” they said, so that the government uses their insurer as a vehicle to provide the objectionable drugs.

The unanimous three-judge panel disagreed. Pillard wrote that the latest regulations “do not impose a substantial burden on plaintiffs’ religious exercise.” But the court went further: Even if the regulations did impose a substantial burden, Pillard wrote the mandate could go forward because the government has a compelling interest in providing the drugs to women.

“That coverage offers adults and children the benefits of planning for healthy births and avoiding unwanted pregnancy, and it promotes preventive care that is as responsive to women’s health needs as it is to men’s,” Pillard wrote. She goes on for several pages about the importance of Obamacare and the value of contraceptives to women’s equality.

Pillard’s opinion seemed in part addressed to the U.S. Supreme Court. She notes the latest mandate rules from the Obama administration parallel an alternative the Supreme Court justices discussed as potentially constitutional in the Hobby Lobby arguments. But the justices clearly stated they weren’t deciding the constitutionality of such an accommodation, just noting the fact that the accommodation existed for nonprofits while for-profits had none.

The Catholic plaintiffs are unlikely to seek en banc (full court) review of the decision because the majority of D.C. Circuit judges are Democratic appointees. Priests for Life said in a press release that it would appeal the decision to the Supreme Court. The University of Notre Dame’s case against the mandate is the only other similar appeal pending before the Supreme Court, but religious freedom lawyers don’t think the Notre Dame case is ideal for Supreme Court consideration.