NY judge orders first permanent block against HHS mandate

New York City, N.Y., Dec 17, 2013 / 18:02 pm

A federal judge in New York has issued the first permanent injunction against the federal contraception mandate, a ruling that religious freedom advocates are praising as a major victory.

"There is no way that a court can, or should, determine that a coerced violation of conscience is of insufficient quantum to merit constitutional protection," wrote Judge Brian Cogan of the Federal District Court in Brooklyn in a Dec. 16 ruling.

He explained that the controversial mandate "burdens plaintiffs' religion by coercing them into authorizing third parties to provide this coverage through the self-certification requirement, an act forbidden by plaintiffs' religion."

Judge Cogan issued the ruling in a case brought by the Catholic archdioceses of New York and Rockville Centre, as well as associated Catholic institutions within the archdioceses. The lawsuit challenged the federal contraception mandate, arguing that it amounts to an unconstitutional violation of religious freedom.

The mandate, issued as a directive under the Affordable Care Act, requires employers to offer health insurance plans covering contraceptives, sterilization, and some products that may cause early abortions.

In his ruling, Cogan dismissed the complaints of the archdioceses themselves, because they are already exempt from the mandate in its finalized form, which was released by the Obama administration after an extensive revision process.

However, he granted permanent injunctive relief to the remaining plaintiffs that were not already exempt: Cardinal Spellman High School, Monsignor Farrell High School, Catholic Health Care System – or ArchCare – and Catholic Health Services of Long Island. The injunction protects the organizations from the demands of the mandate and from the penalties for failing to comply with it.

This marks the first time a judge has granted a permanent injunction in a case challenging the mandate, although other institutions have received temporary injunctions. Some 89 cases against the federal regulation have been filed by a total of nearly 300 plaintiffs across the country. Many are still working their way through the court system. The Supreme Court has announced that it will hear a challenge to the mandate brought by two for-profit business owners, with a ruling expected next summer.

In the New York case, the federal government argued that it had adequately provided for the religious freedom of the organizations through an "accommodation" offered to non-exempt religious employers, whereby they would act to trigger a third-party administration to provide the coverage. The plaintiffs argued that the plan still required them to facilitate the coverage that they found morally objectionable.

In his ruling, Cogan commented that despite the accommodation, the Catholic organizations faced "substantial" burdens on their religious beliefs and "coercive pressure" to comply with the mandate. He noted that the institutions were given the options of violating their religious beliefs or paying thousands of dollars per employee per year in fines.

The judge rejected the Department of Health and Human Services' claim that there is no viable alternative to the mandate in providing access to contraceptives and related products. Rather, he stated, "numerous less restrictive alternatives are readily apparent," such as the government directly providing contraceptives to individuals.

"It would set a dangerous precedent to hold that if the Executive Branch cannot act unilaterally, then there is no alternative solution," Cogan commented, adding that "Congress may pass appropriate legislation" if the Executive Branch is unable to create an alternative on its own.

He also rejected the argument that alternatives to the federal mandate would be less effective or too burdensome on women. If such alternatives "only entail filling out a form," he suggested as an example, the "burden of filling out that form should fall on those who have no religious objection to doing so."

Joseph Zwilling, communications director for the Archdiocese of New York, welcomed the ruling in a Dec. 16 statement.

"The court has correctly cut through the artificial construct which essentially made faith-based organizations other than churches and other houses of worship second class citizens with second class First Amendment protections," he said.

"Religious freedom is our 'First Freedom,' guaranteed in the Constitution of the United States," he confirmed, adding that the decision reiterates that freedom of religion is not merely the freedom to worship, but also "must include how we act in accord with our religious beliefs."