Nonprofits hold out for help from on high

When the Supreme Court reconvenes in the fall, the nine justices will consider appeals from at least a half dozen nonprofits that have lost round after round at the circuit court level over the contraceptive and abortifacient mandate.

Most recently, the Little Sisters of the Poor, a group of Catholic nuns who serve the elderly poor, lost its petition for protection from the mandate at the 10th U.S. Circuit Court of Appeals. The court consolidated its case with cases from Guidestone Financial Resources, Reaching Souls International, Truett-McConnell College, and Southern Nazarene University.

Though nonprofits challenging the mandate have a record of success at the district court level, in the last year they have a string of losses at the circuit level. The D.C. Circuit Court of Appeals ruled against Priests for Life. The 6th Circuit ruled against the Michigan Catholic Conference and the Catholic Diocese of Nashville. The 5th Circuit ruled against East Texas Baptist University, Houston Baptist University, the Catholic Diocese of Beaumont, and the Catholic Diocese of Fort Worth. The 3th Circuit ruled against the Diocese of Erie, the Diocese of Pittsburgh, Geneva College, and Seneca Hardwood. The 7th Circuit ruled against Wheaton College and the University of Notre Dame. Several cases are still pending at other circuits.

So far, about a half dozen of the organizations have asked the court to hear their cases. Four justices must vote to accept such a request, and they will reconvene at the beginning of October to start filling the docket.

The Becket Fund for Religious Liberty’s Mark Rienzi, senior litigator for the Little Sisters case, thinks the Supreme Court will take up one of the nonprofits’ cases, even if the circuits don’t split. The Supreme Court has issued emergency orders on behalf of nonprofits challenging the mandate three times, which indicates interest in the case.

Two petitions for a Supreme Court hearing stick out. The requests for a hearing from Little Sisters and from the Baptist universities in Texas, both from the Becket Fund, have the name of one of the most prominent Supreme Court litigators practicing now: Paul Clement. The other firms handling the cases, Alliance Defending Freedom and Jones Day, have their share of prominent litigators as well, but no one of Clement’s stature. Clement successfully argued the Hobby Lobby case.

Despite the circuit losses, nonprofits haven’t been forced to comply with the mandate to this point because they have tenuous protection during the appeals process. Wheaton College and the University of Notre Dame are the exceptions: Wheaton dropped its student health insurance plan over the ruling, and Notre Dame has complied over its conscience objections.

Why have nonprofits lost at the circuit level? Six years into President Barack Obama’s term, the circuit courts now have a number of his appointees. But Rienzi, who has handled the Little Sisters case, says that’s not the clear reason.

“Plenty of judges not appointed by this president have also gotten it wrong,” he said. His explanation? “Bad analysis. … They’ve been accepting the government’s argument that it’s for the courts and the government to decide what counts as complicity—not the religious objectors. … That is fundamentally the wrong way to assess religious liberty claims.”

When Rienzi says “complicity” he is referring to whether Little Sisters of the Poor is morally complicit in providing contraceptives and abortifacients to its employees under the federal government’s current “accommodation” for nonprofits. Under the current rules, an objecting nonprofit must send a form to the Department of Health and Human Services (HHS) stating its religious objection and naming its insurance provider. Then HHS tells the insurer or a third-party to provide the drugs separately.

The objecting nonprofits say the government is still using their insurance as the vehicle for delivering the drugs they object to, and therefore they are morally complicit.

“[The federal regulations] want to borrow the nun’s health plans,” Rienzi said. “The only purpose of this form and signature is to get contraceptives. If nothing happens, this whole thing is really bizarre. It can’t be that the form is really, really important and meaningless.”

Rienzi thinks the recent Supreme Court ruling in King v. Burwell helps his case. The court upheld the constitutionality of the federal health insurance exchanges, and so Rienzi said now it’s certain any individual at one of the objecting nonprofits could go to the exchanges to get insurance with coverage for the objectionable drugs.

“Anyone who works for the Little Sisters of the Poor can go to the exchanges,” he said. “Government can subsidize you as much as it wants.”

Ten years ago, employees only got insurance through their employers, he said. Now, it’s a different situation.

“There’s no need at all for them to take over the Little Sisters system,” he said. “The government has its system … it just doesn’t need the nuns.”