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Religious Liberties

Supreme Court Concludes 2015 Term - Podcast

Practice Groups Podcast
Gregory G. Katsas, Roger Severino June 27, 2016

On June 27, 2016, the United States Supreme Court concluded its October 2015 term by issuing decisions in Whole Woman’s Health v. Hellerstedt, McDonnell v. United States, and Voisine v. United States. Our experts discussed the opinions and the term.

Featuring:

  • Hon. Gregory G. Katsas, Partner, Jones Day
  • Roger Severino, Director, DeVos Center for Religion and Civil Society, The Heritage Foundation

Zubik v. Burwell - Post-Decision SCOTUScast

SCOTUScast 5-23-16 featuring Roger Severino
Roger Severino May 23, 2016

On May 16, 2016, the Supreme Court decided Zubik v. Burwell, the lead case in a consolidated series, with the other petitioners including Priests for Life, Southern Nazarene University, Geneva College, Roman Catholic Archbishop of Washington, East Texas Baptist University, and Little Sisters of the Poor Home for the Aged.

The Patient Protection and Affordable Care Act of 2010 (ACA) requires that group health plans and health insurance issuers provide coverage for women’s “preventative care,” or face financial penalties. Although the ACA does not define preventative care, the U.S. Department of Health and Human Services (HHS), relying on the Institute of Medicine, determined that the term encompassed, among other things, all FDA-approved contraceptive methods, including drugs and devices that could induce an abortion. Federal regulations require petitioners to cover these contraceptives as part of their health plans, unless petitioners submit a form either to their insurer or to the Federal Government, stating that they object on religious grounds to providing contraceptive coverage. Petitioners resisted, asserting that submitting the notice substantially burdened the exercise of their religion, in violation of the Religious Freedom Restoration Act of 1993. The ensuing litigation yielded different outcomes in different U.S. Courts of Appeals, and the Supreme Court granted certiorari. Following oral argument, the Court requested supplemental briefing from the parties addressing “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.” 

After receiving the supplemental briefs the Supreme Court vacated the judgments of the Courts of Appeals by a vote of 8-0 and remanded the cases to the Third, Fifth, Tenth, and D.C. Circuits, respectively. The Court’s per curiam opinion explained that “‘the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’” Furthermore, the Court indicated it was expressing no view on the merits of the cases and stated that “nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by petitioners’ health plans ‘obtain, without cost, the full range of FDA-approved contraceptives.’" At the same time, the Court noted, throughout this litigation, petitioners had made the Government aware of their view that they meet “the requirements for exemption from the contraceptive coverage requirement on religious grounds” and nothing in the Court’s opinion, or in the opinions or orders of the courts below, “precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage going forward.” And because the Government may rely on this notice, the Court indicated, “the Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice.”

Justice Sotomayor issued a concurring opinion, joined by Justice Ginsburg.

To discuss the case, we have Roger Severino, who is Director, DeVos Center for Religion and Civil Society, The Heritage Foundation.

Little Sisters of the Poor Case Decided: Zubik v. Burwell - Podcast

Religious Liberties Practice Group Podcast
Roger Severino May 17, 2016

On Monday, May 16, the United States Supreme Court issued a per curium opinion resolving, for the time being, Zubik v. Burwell, the contraceptive mandate case. The decision is causing no small amount of confusion. Who won, and who lost? What is required of the plaintiffs in the case? What are the next steps in the litigation? Our expert answered these and other questions.

Featuring:

  • Roger Severino, Director, DeVos Center for Religion and Civil Society, The Heritage Foundation

Zubik v. Burwell - Post-Argument SCOTUScast

SCOTUScast 4-20-16 featuring Roger Severino
Roger Severino April 20, 2016

On March 23, 2016, the Supreme Court heard oral argument in Zubik v. Burwell, the lead case in a consolidated series, with the other petitioners including Priests for Life, Southern Nazarene University, Geneva College, Roman Catholic Archbishop of Washington, East Texas Baptist University, and Little Sisters of the Poor Home for the Aged.

The Patient Protection and Affordable Care Act of 2010 (ACA) requires that group health plans and health insurance issuers provide coverage for women’s “preventative care,” or face financial penalties. Although the ACA does not define preventative care, the U.S. Department of Health and Human Services (HHS), relying on the Institute of Medicine, determined that the term encompassed, among other things, all FDA-approved contraceptive methods, including drugs and devices that could induce an abortion. Although the government exempted “religious employers” from this mandate, the exemption was narrowly defined and did not extend to petitioners. The government did, however, offer non-profit entities such as petitioners an “accommodation.”  

Under the accommodation, which was modified in the course of litigation, an objecting religious nonprofit entity complies if it provides the government with a notice that includes “the name of the eligible organization,” its “plan name and type,” and the name and contact information for any of the plan’s third-party administrators (TPAs) and health insurance issuers. Upon receiving the notice, the government notifies the objecting entity’s insurance company or TPA, which then must provide payments for the requisite contraceptive products and services. A number of objecting non-profits sought relief in various federal courts, arguing that the accommodation violated the Religious Freedom Restoration Act (RFRA) of 1993. The resulting litigation produced a series of fractured opinions and a split in the Courts of Appeals, with non-profit religious organizations prevailing in the Eighth Circuit but losing in a number of others.

After imposing a brief injunction on enforcement against petitioners while it considered various petitions for certiorari, the U.S. Supreme Court granted a number of petitions and consolidated the cases for oral argument on the following question: whether the HHS Mandate and its “accommodation” violate RFRA by forcing religious nonprofits to act in violation of their sincerely held religious beliefs, when the Government has not proven that this compulsion is the least restrictive means of advancing any compelling interest. On March 29, the Court also issued a detailed order requiring the parties to brief “whether and how contraceptive coverage may be obtained by petitioners'’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.”

To discuss the case, we have Roger Severino, who is Director, DeVos Center for Religion and Civil Society, The Heritage Foundation.

Religious Liberty in the Armed Forces - Podcast

Religious Liberties Practice Group Podcast
Michael Berry April 18, 2016

The Court of Appeals for the Armed Forces recently granted review in United States v. Sterling, in which it will address, for the first time, the nature and scope of Religious Freedom Restoration Act’s applicability within the military. Marine Corps Lance Corporal Monifa Sterling was convicted at a court-martial for refusing to remove a Bible verse she taped to her computer in her workspace. Our expert, along with former U.S. Solicitor General Paul D. Clement, serves as co-counsel for Ms. Sterling, and explained Sterling’s potential significance to religious liberty within the military. Our expert also discussed other significant and recent developments in the field of military religious liberty, such as the case of U.S. Navy chaplain Wes Modder, who faced career-ending punishment after offering pastoral counseling in accordance with his denomination’s teaching and tenets.

Featuring:

  • Michael Berry, Senior Counsel and Director of Military Affairs, First Liberty Institute