As part of the Affordable Care Act, the federal government issued a rule that requires health plans to cover contraception without a co-pay. To date, 92 cases have been filed challenging the rule as an infringement on religious liberty. 80 of these cases are currently pending: 33 cases brought by nonprofit organizations, 44 cases brought by for-profit companies, and 3 cases brought by both nonprofit and for-profit plaintiffs. In these cases, the ACLU is defending the anti-discrimination rule. While religious freedom gives us all the right to make personal decisions about how to practice religion, it doesn't give institutions or individuals the right to impose their beliefs on others or to discriminate. Thus, together with National, we filed an amicus brief arguing that point.
On June 17, 2014, the district court rejected EWTN’s claims that the rule (1) violates the Religious Freedom and Restoration Act; (2) violates the Free Exercise Clause; (3) violates the Establishment Clause; and (4) violates the Free Speech Clause. See EWTN v. Burwell, 26 F.Supp.3d 1228 (S.D. Ala. 2014); EWTN v. Burwell, 2014 WL 2738546 (S.D. Ala. June 17, 2014). EWTN filed a notice of appeal on June 18. We submitted an amicus brief on appeal.
Immediately following the Supreme Court’s decision in Burwell v. Hobby Lobby, the Eleventh Circuit granted an injunction pending appeal. In a concurring opinion, Judge Pryor wrote at length as to why EWTN “is substantially likely to succeed on the merits of its appeal and that the contraception mandate of the … Affordable Care Act violates the Religious Freedom Restoration Act.” (citations omitted).
Oral argument was held on February 4, 2015. On February 18, 2016, the Eleventh Circuit in a 2-1 decision affirmed the district court holding that EWTN’s rights were not violated and upholding the Affordable Care Act religious accommodation process. Eternal Word Television Network, Inc. v. Secretary of U.S. Dept. Health and Human Services, 818 F.3d 1122 (1th Cir. 2016). EWTN is preparing a petition for rehearing en banc at the Eleventh Circuit.
Following the Supreme Court’s decision in Zubik v. Burwell, No. 14-1418, --- S. Ct. ---- , 2016 WL 1203818 (Mar. 29, 2016) (directing parties to provide additional briefing addressing “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies without any such notice from petitioners,” the Eleventh Circuit vacated its opinion and asked for supplemental briefing.