On Tuesday, a federal court in Tampa, Fla. stopped the Obama administration from enforcing the new and improved version of the Obamacare mandate that employers provide healthcare coverage of abortion-inducing drugs.
Ave Maria University, a Catholic school based in Florida, challenged the so-called “accommodation” that allows it to avoid directly providing or paying for coverage of potentially life-ending drugs and devices by notifying the Department of Health and Human Services (HHS) of its objection. Judge James Moody, Jr. (a Bill Clinton-appointee) stopped HHS from enforcing the mandate against Ave Maria (or assessing fines for Ave Maria’s noncompliance) pending resolution of Eternal Word Television Network v. Burwell, a similar case pending before the U.S. Court of Appeals for the Eleventh Circuit.
Two lines of cases have been winding their way through the federal judiciary since the administration unveiled the HHS mandate in August 2011. The for-profit cases culminated in the Supreme Court’s ruling in favor of religious liberty last summer in Burwell v. Hobby Lobby. The Court determined that closely-held for-profit companies, such as a chain of craft stores and a wood-working business, could challenge the HHS regulation forcing them to pay for healthcare coverage that violates their religious beliefs or face steep fines. The non-profit cases—challenging the “accommodation” from the anti-conscience mandate—have not yet reached the Supreme Court but could in the next term.
The administration issued an “accommodation” for non-profit employers to self-certify to their insurance providers or a third-party administrator that they have a religious objection to providing or paying for certain drugs and devices, and this initiated the process of the insurance company or third-party administrator providing the mandated coverage to employees. Following the Hobby Lobby decision, the administration tweaked its regulations, including the accommodation. Now non-profit employers must notify HHS directly, rather than their insurance provider or third-party administrator, of religious objections to the requirements.
But neither form of the accommodation fixes the problem. This simply shifts responsibility for purchasing coverage away from the employers but does not “absolve or exonerate [the employers] from the moral turpitude created by the ‘accommodation’; to the contrary, it still substantially burdens their sincerely-held religious beliefs,” as one judge put it.
In Ave Maria’s case, Judge Moody noted that while there are differences between the old accommodation and the current version, they are “not so significant” as to warrant not granting injunctive relief. Thus, Ave Maria won a temporary victory in the battle against the anti-conscience mandate, but the war rages on. There are currently 53 cases with more than 100 plaintiffs challenging the accommodation, and the issue could be heading toward the Supreme Court in the next term.