CBEBT and Little Sisters of the Poor Lawsuit Update

Yesterday Christian Brothers Services issued an update on the class action lawsuit that it filed last Fall. It is the same lawsuit in which the Little Sisters of the Poor are plaintiffs. Because a large number of RCRI's subscribers participate in the Christian Brothers Employee Benefit Trust (CBEBT) and have called to ask how the recent rulings affect them, we are re-publishing the informative email so that our members are aware of what effect the recent Supreme Court rulings in the case have on those who participate in the CBEBT.

February 11, 2014

Update on Class Action Lawsuit Challenging the Contraceptive Mandate

 

As many of you may know, in September 2013, Christian Brothers Services (CBS), together with a number of participating employers in the Christian Brothers Employee Benefit Trust (the CBEBT), filed a class action lawsuit in federal court challenging the application of the contraceptive mandate under the Affordable Care Act (ACA) to participating employers in the CBEBT. This lawsuit sought to prohibit the government from applying the mandate to participating employers in the CBEBT, or applying any penalties for failing to comply with the mandate.

On December 28, 2013 the federal trial judge assigned to our case denied our request for a preliminary injunction pending the resolution of the case. We ultimately appealed that ruling to the United States Supreme Court and were granted a temporary injunction by Justice Sotomayor on December 31, 2013. On January 24, 2014, the U.S. Supreme Court granted an injunction to the employer applicants so long as they inform the government that they are "are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services." That injunction prevents enforcement of the contraceptive mandate against those employer applicants until the 10th Circuit Court of Appeals rules on our request for an injunction.

WHAT THIS MEANS FOR EBT MEMBERS

While the case is pending before the 10th Circuit Court of Appeals, Catholic employers participating in the Christian Brothers Employee Benefit Trust will not be required to provide or arrange for contraceptive coverage.

Because the government agreed at the outset of the case that any preliminary injunction for the named plaintiffs would extend to the entire class, the Supreme Court's order affects nearly 400 Catholic organizations throughout the United States that provide health benefits for their employees through the Trust that are not already exempt from the contraceptive mandate. Our attorneys are currently in discussions with government officials as to exactly what employers participating in the Trust need to do to be covered by the Supreme Court's injunction. We will let you know if the government takes the position that there is anything else that you need to do in order to be protected during the pendency of this case.

CBS is dedicated to providing you with current and up-to-date information on this issue. On February 27, 2014 at 1:00 p.m. Central time, we will be hosting a webinar entitled, "Healthcare Reform Update." Also, within the next few weeks we will be releasing a white paper entitled, "Remaining Faithful: Adhering to Catholic Tenets While Abiding by the Affordable Care Act (ACA)" which will be posted to our website.

CBS supports the basic elements of the ACA and is well aware that dimensions of health care in the United States need improvement. However, we were brought to this action by the federal government, which made numerous exemptions and accommodations as ACA was being implemented, but refused to exempt CBEBT plan participants. Through the Church Alliance, Christian Brothers Services had spent three years attempting to work with government officials on these issues as the regulations under the ACA were being drafted, but the government chose to define a "religious employer" narrowly and to target those employers who do not match their cramped definition. We, together with our fellow litigants, are on the front line in this battle to defend religious liberty for ourselves and our participants.

If you have any questions, please contact John Airola at 800- 807-0100 x 2450 or john.airola@cbservices.org.

Thus, participants in the CBEBT which are not classified as "religious employers" but rather as "eligible organizations" (eligible for an accommodation) should know that they are not required to provide contraception, sterilization, and abortion-inducing drugs to their employees. The injunction protects them (for now) from the $100 per day per employee fine that the ACA imposes upon employers who do not cover all the essential health benefits and are not classified as a religious employer or as eligible for an accommodation.

Indeed, even though a Catholic employer that uses CBEBT may not have an objection to these services or products, Christian Brothers is seeking through this lawsuit to protect its own right to be recognized as a religious organization and to not be required to supply these items. Normally, in situations where there is an accommodation, the insurance company must provide these items to the employees in a separate arrangement. Since Christian Brothers is also a Catholic employer, it also is seeking the same right of refusal. It does not qualify under current ACA provisions as a religious employer nor as eligible for an accommodation.

We will continue to follow the developments in this lawsuit.

Is HHS Mandate Forcing Religious to Leave the U.S.?

by Donna Miller, Associate Director for Civil Law

I have been asked about a news item  that has been the subject of a number of national media stories and blogosphere writings this week. It is about the Little Sisters of the Poor and their recent announcement that they may have to leave the United States all together as a result of the Affordable Care Act. Specifically, these women religious are concerned over the HHS Mandate that dictates what coverage has to be included in the healthcare policies that employers purchase for employees. Here are two links to various versions of the Little Sisters' story.

http://dailycaller.com/2012/12/19/obamacare-could-drive-little-sisters-of-the-poor-out-of-the-us/

http://www.nationalreview.com/corner/336114/obamacare-may-force-out-order-nuns-andrew-johnson#

The recent announcement is not the first time the Little Sisters of the Poor have spoken out against the HHS Mandate. In March of this year they voiced their concern that the mandate would have detrimental effects on their U.S. operations. In addition,  the Little Sisters of the Poor are, like many other women's religious institutes, feeling the effects of declining entrants into formation and an aging membership. Indeed, the Little Sisters announced in March of this year that they are closing their facility in Evansville, Indiana, which is where my own grandmother lived and was cared for until her death in 2003. (See video at http://tristatehomepage.com/fulltext-news?nxd_id=501192.)

So the question that has been asked is whether this HHS Mandate situation is unique to the Little Sisters of the Poor or could it affect others in a similar way? The answer to that question, as so often is the case, is that it depends. If your religious institute's members object to the same provisions that are causing the Little Sisters of the Poor to reflect on their U.S. mission, then yes, you also may have to make some tough choices.

By now you know that the HHS Mandate requires insurance policies to cover specified women's preventive services, including contraception, sterilization, and drugs known to cause fertilized eggs to abort. The Mandate dictates that, if an employer pays for health insurance coverage for its employees, the coverage must contain these provisions. It is these mandatory service provisions that have raised conscience objections in many Christian employers, both as corporation leadership and as individuals (sole proprietors) with employees. Whether the employer can stop providing coverage is a matter of how many employees there are. If you have under 50, then you are not required to provide coverage. If you have 50 or more employees, then you must either pay for their coverage or pay a fine per employee. There is a narrow "religious exemption," but it does not cover most religious institutes unless they are cloistered. And few of them would have 50 employees.

There are cases making their way through the courts all over the country. We wrote on this blog about a NY hearing a few weeks ago. And just yesterday it was reported that  D.C. federal court overruled the dismissal by a lower court of a case challenging the HHS Mandate and ordered HHS to report back every 30 days until it has finalized the provisions that it says will solve the dilemma that religious organizations claim are in violation of their Constitutionally protected religious freedom. To date the mandate stands, but the issue will certainly end up before the Supreme Court in the near future, possibly 2013.