Pennsylvania AG files challenge to new federal religious freedom rules

Harrisburg, Pa., Dec 14, 2018 / 21:01 pm

New rules are set to ensure strong religious exemptions to federal mandates requiring employer health care plans to provide birth control coverage, but Pennsylvania Attorney General Josh Shapiro's legal challenge could derail them.

"Families rely on the Affordable Care Act's guarantee to afford care," Shapiro said Dec. 14. "Congress hasn't changed the law, and the president can't simply ignore it with an illegal rule."

He filed an amended complaint Friday challenging the Trump administration's final religious exemption rules, set to take effect Jan. 14, 2019. New Jersey Attorney General Gurbir Grewal joined the complaint, the Philadelphia Inquirer reports.

Shapiro's complaint makes several claims, including charges that the new rules violate the separation of church and state and allow employers to discriminate on the basis of sex.

On Nov. 7, the Trump administration released two updated rules concerning conscience protections for organizations and individuals in relation to the Department of Health and Human Services' so-called contraception mandate.

The rules allow colleges, universities, and health insurance companies to decline to cover contraceptives, including drugs that can cause abortion, whether for religious or non-religious moral objections.

The U.S. Conference of Catholic Bishops welcomed the new rules as "common-sense regulations that allow those with sincerely held religious or moral convictions opposing abortion-inducing drugs, sterilization, and contraception to exclude such drugs and devices from their health plans."

Mark Rienzi, president of the Becket religious liberty legal group, praised the new rules, saying they signaled the end of a "long, unnecessary culture war." Rienzi's legal group represents the Little Sisters of the Poor, who have challenged mandates requiring them to provide such coverage to employees.

"All that is left is for state governments to admit that there are many ways to deliver these services without nuns, and the Little Sisters can return to serving the elderly poor in peace," Rienzi said last month.

The Little Sisters of the Poor are currently being sued by the attorneys general of Pennsylvania and California, which challenge their religious exemptions allowing them to decline to provide the coverage to which they object.

The U.S. Supreme Court had barred enforcement of the mandate on closely held private companies in its 2014 case involving Hobby Lobby, which is owned by an Evangelical Christian family that objected to some of the mandated drugs.

In May 2016, the Supreme Court voided the federal circuit court decisions involving other plaintiffs challenging the mandate and sent these cases back to their respective federal courts. The court directed the lower courts to give all parties time to come to an agreement that satisfied their needs.

The Little Sisters of the Poor case, Zubik v. Burwell, is named for Bishop David Zubik of Pittsburgh, who is a plaintiff.

Bishop Zubik came under fire for his diocese's handling of sex abuse cases after Shapiro's office in August released a grand jury report on six Catholic dioceses in Pennsylvania, citing allegations of abuse over a span of decades.

The Trump administration's 2017 religious exemptions to the HHS rule were still being litigated in court. A Ninth Circuit Court of Appeals three-judge panel on Thursday lifted a district court's preliminary nationwide injunction against the 2017 religious exemptions, but allowed the injunction to stand in the five states that have filed legal challenges.

The majority decision by Ninth Circuit Judge J. Clifford Wallace acknowledged that free exercise of religion and conscience are "undoubtedly, fundamentally important."

"Protecting religious liberty and conscience is obviously in the public interest. However, balancing the equities is not an exact science," the decision continued. The majority said the appellate court lacked sufficient basis "to second-guess the district court and to conclude that its decision was illogical, implausible, or without support in the record."

The decision faulted federal officials for not satisfying the rules of the Administrative Procedure Act, including requirements for public comment on new rules.

A nationwide injunction against the 2017 rules was still in effect in Pennsylvania, however.

Last month the Eleventh Circuit Court of Appeals vacated a 2014 District Court decision against EWTN Global Catholic Network, the parent company of Catholic News Agency, in its lawsuit against the mandate.

Under the terms of the settlement with Department of Health and Human Services, EWTN will not be required to provide contraception, sterilization, or abortifacients through its employee health care plan.