First USG Brief in Opp. filed: On Wednesday, the Solicitor General filed this brief <https://www.justsecurity.org/wp-content/uploads/2015/08/priests.archdiocese.bio_.pdf> in opposition to the two petitions for *certiorari *from the decision of the U.S. Court of Appeals for the D.C. Circuit in *Priests for Life. *He argues that Supreme Court review is not warranted because all six courts of appeals to have ruled thus far have "correctly rejected petitioners’ RFRA challenge to the accommodation, which exempts petitioners from any obligation to contract, arrange, pay, or refer for contraceptive coverage for employees or their beneficiaries." He does, however, signal (pp.30-31) that if and when the Court decides to consider the question, it should grant the petition in No. 14-1505, *Roman Catholic Archbishop of Washington v. Burwell*, principally for the reasons I discussed in this post <http://balkin.blogspot.com/2015/07/update-on-contraception-coverage.html>.
On Sat, Aug 8, 2015 at 10:28 AM, Marty Lederman <lederman.ma...@gmail.com> wrote: > The Second Circuit rules in accord with the others; four more cases > outstanding (in the 6th, 7th, 8th and 11th Circuits). > > [UPDATE: h. On August 7, 2015, in *Catholic Health Care System v. > Burwell > <http://www.ca2.uscourts.gov/decisions/isysquery/786a8b95-3147-42e2-a267-283f1b88d8e2/3/doc/14-427_opn.pdf>*, > the > U.S. Court of Appeals for the Second Circuit unanimously ruled, on the > merits, that the augmented accommodation "do[es] not substantially burden > Plaintiffs’ religious exercise in violation of RFRA," in a case brought by > two high schools and two health care organizations, all of which use > self-insured "church plans." > > In an opinion by Judge Pooler, the court of appeals reasoned, as have the > other courts, that “a religious objector’s submission of the form or letter > does not, as a legal matter, trigger or facilitate the provision of > contraceptive coverage. Rather, contraceptive coverage occurs through > operation of federal law. When third parties step in and provide > contraceptive coverage after Plaintiffs opt out, they do so not because > Plaintiffs have opted out, but rather because federal law requires or > incentivizes them to provide such coverage. The accommodation functions > not as a 'trigger,’ but rather as a means of identifying and exempting > those employers with religious objection.” Toward the end of its opinion, > the court addressed the argument that is increasingly becoming the focus of > the nonprofits' arguments--namely, that the complicity arises not because > opting out results in *someone else *offering contraceptive coverage, but > instead because opting out can result in coverage being offered by the very > company that the employer has contracted with to act as the third-party > administrator (if that administrator chooses to do so--because these are > church plans, the government cannot require the TPA to do so). The court > rejected the idea that this particular relationship can result in a > substantial burden: "Plaintiffs’ relationships with their employees and > third-party administrators," wrote Judge Pooler, "do not provide them an > avenue to dictate these entities’ independent interactions with the > government, even if Plaintiffs find these actions objectionable." > > On Fri, Jul 24, 2015 at 3:29 PM, Marty Lederman <lederman.ma...@gmail.com> > wrote: > >> Also, the Seventh Circuit today denied Notre Dame's petition for >> rehearing en banc; no judge requested a vote on the petition. >> >> On Fri, Jul 24, 2015 at 3:14 PM, Marty Lederman <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.] >>> >>> On Mon, Jul 20, 2015 at 12:23 PM, Marty Lederman < >>> lederman.ma...@gmail.com> wrote: >>> >>>> FYI, a post on developments of the past few months, in three parts: >>>> >>>> http://balkin.blogspot.com/2015/07/update-on-contraception-coverage.html >>>> >>>> *First*, a quick note on the government's new final rules regarding >>>> the religious accommodation (including its extension to some for-profit >>>> employers such as Hobby Lobby, Inc.). *Second*, a summary of the >>>> courts of appeals' treatment of the nonprofit challenges. And *third*, >>>> a discussion of the handful of *cert. *petitions that already have >>>> been filed in the nonprofit cases--with particular emphasis on the theories >>>> of complicity that those petitions allege in support of the argument that >>>> the accommodation imposes a "substantial burden" on the plaintiffs' >>>> religious exercise. >>>> >>>> I'd be very grateful if listmembers would let me know if I've gotten >>>> anything wrong, or overlooked anything of note. And if you become aware of >>>> any further court of appeals decisions or cert. petitions, please let me >>>> know ASAP, so that I can update. Thanks >>>> >>> >>> >> >
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