The linked PDF of the cert petition (in 15-119) doesn't include the Appendix, which reproduces the self-certification form. Can anyone provide an image (front and back, if double-sided) of the current form?
Are petitioners right that in some cases they would have to locate and enter into a relationship with a TPA that is willing to provide the four objectionable drugs/devices? Are they right that the certification is declared by law to be a formal addition to their insurance plan documents that authorizes the TPA to provide the drugs/services? I realize Marty has said (if I understand him correctly) that employees of religious employers with "church plans" won't receive these drugs/devices in any event, but I think only one petitioner has a church plan. I still don't understand which organizations qualify to have church plans. It seems to me that the sending of a letter or simple notice stating an objection is all that is necessary for the government to make sure the drugs/devices are provided, if the government (which acts purposively to make law through two branches) so chooses. [I say "purposively" because we know the courts have "neither FORCE nor WILL." (All caps in original, I think.)] A requirement that such a letter or simple notice be sent is the least restrictive means by which the government may advance that interest; it's pretty clear to me that HHS can require that. If HHS is demanding more, then it isn't clear why RFRA permits it to do so. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Aug 1, 2015, at 6:42 AM, "Marty Lederman" <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: and a sixth petition, also from the Tenth Circuit decision: f. On July 24, 2015, four university plaintiffs in the Tenth Circuit case filed another petition, No. 15-119<https://www.justsecurity.org/wp-content/uploads/2015/08/southernnazarene.pet_.pdf>, Southern Nazarene Univ. v. Burwell (David Cortman, Counsel of Record). Two of those plaintiffs, Oklahoma Wesleyan University and Oklahoma Baptist University, use insured plans; all three judges on the court of appeals rejected their RFRA claims The other two petitioners are among the four plaintiffs as to which Judge Baldock dissented (see above)--Southern Nazarene University, which uses a self-insured plan, and Mid-America Christian University, which uses a self-insured church plan. All four of these petitioners object to the regulation only as applied to the four contraceptive methods at issue in Hobby Lobby--ella, Plan B, and two types of IUDs. On Fri, Jul 24, 2015 at 3:14 PM, Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: A fifth petition filed, this one in Little Sisters: [UPDATE: e. On July 23, 2015, the parties in one of the consolidated cases in the Tenth Circuit--Little Sisters, et al.--filed petition No. 15-105<https://www.justsecurity.org/wp-content/uploads/2015/07/littlesisters.pet_.pdf>, Little Sisters of the Poor Home for the Aged v. Burwell [Paul Clement, Counsel of Record]. As noted above, all three judges on the Tenth Circuit panel, including Judge Baldock, rejected Little Sisters' claim on the theory that there can be no substantial burden in that case because the Little Sisters employees will not receive cost-free contraception coverage in any event: Little Sisters uses a church plan administered by Christian Brothers Services, which has itself made clear that, because of its own religious objections, it will not provide contraceptive coverage if the Little Sisters were to opt out--and the government may not compel Christian Brothers to offer such services. Little Sisters nevertheless argues in its petition (see footnote 2) that its opt-out might still result in coverage for its employees, because its plan has another TPA, Express Scripts, that has not made the same representation as Christian Brothers; and at oral argument in the Tenth Circuit counsel for the government represented that the Department of Labor would ask Express Scripts to provide coverage to those employees even though the government has no legal authority to require Express Scripts to do so. The judges on the court of appeals not surprisingly disregarded Little Sisters' argument respecting Express Scripts; as I blogged back in January 2014<http://balkin.blogspot.com/2014/01/little-sisters-state-of-play.html>, and as the government argued to the court of appeals, "Plaintiffs made no reference to Express Scripts in their complaint or in their preliminary injunction filings, and allegations about this organization cannot be a basis for challenging the court's denial of the preliminary injunction. . . . Moreover, plaintiffs bear the burden of establishing their entitlement to injunctive relief, which they have wholly failed to do with respect to any possible coverage by Express Scripts." That is to say, even assuming that Express Scripts is a third-party administrator, the mere possibility that it might voluntarily provide contraceptive coverage to Little Sisters' employees, absent any regulatory compulsion to do so, presumably would be insufficient grounds to reverse the preliminary injunction, given that Little Sisters bears the burden of establishing its entitlement to injunctive relief.]
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
