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Round 2 on birth control developing

With profit-making businesses waiting to learn within days whether the Supreme Court will spare them, for religious reasons, from having to provide birth-control care for their female workers, several R0man Catholic non-profit entities on Friday asked the Court for similar legal protection.  The new applications went separately to Justices Sonia Sotomayor and Clarence Thomas, but they probably will share the pleas with their colleagues — as happened in a similar situation in January.

The Court is expected to finish its current Term on Monday, and one of the two decisions still outstanding involves the new federal Affordable Care Act’s mandate that employee health plans include pregnancy preventive services.  That controversy involves two profit-making companies whose religiously devout owners object to that obligation.

It is now nearly a certainty that a second round in this health care dispute, involving non-profits, will reach the Court in the new Term that opens in October.  Already, Justice Elena Kagan has given the University of Notre Dame additional time to file an appeal in a case from the U.S. Court of Appeals for the Seventh Circuit.  Appeals also were promised in both of the applications filed Friday.  The charities in those cases face Tuesday deadlines to take action to obey the mandate.

Under the new federal health care law, profit-making businesses are not entitled to any exemption from the mandate’s requirement that they provide pregnancy preventive services in existing employee health plans.  Non-profit groups that are directly affiliated with churches, synagogues, and mosques were granted a religious exemption by the federal government, but not all non-profits with religious objections qualify.  That includes many Roman Catholic colleges, hospitals, and other charities.

Last January, in a case involving a Colorado Catholic charity, Little Sisters of the Poor, the Court gave the group temporary relief from the mandate, while a challenge proceeds in an appeal to the U.S. Court of Appeals for the Tenth Circuit.  In that order, the Justices crafted an approach entirely outside the terms of the federal law.

The charity, the order said, would not have to perform any duties spelled out under the law, if it simply wrote a letter to government officials saying they were a religious non-profit group with objections based on faith to the mandate.  The Little Sisters of the Poor did write such a letter.

In one of the new applications filed on Friday, a non-profit Catholic TV station in Alabama, the Eternal Word Television Network, told the Court that it would like the same kind of order in its case.  Its case is pending in the U.S. Court of Appeals for the Eleventh Circuit, but the station’s lawyers said they would be asking the Supreme Court soon to take on the case without waiting for the court of appeals to rule.

That application was filed with Justice Thomas, who handles emergency requests for legal orders in the geographic region that is the Eleventh Circuit.

The second application was filed by the Catholic Diocese of Cheyenne, Wyoming, along with Catholic Charities of Wyoming, St. Joseph’s Children’s Home, St. Anthony Tri-Parish Catholic School, and Wyoming Catholic College.  They, too, object to taking any steps to obey the birth-control mandate, and note that they face heavy penalties beginning Tuesday if they are not protected.

That plea was filed with Justice Sotomayor, who handles such requests in the geographic region that is the Tenth Circuit.

The two Justices have the authority to act on their own, or to share the requests with their colleagues.  In the Little Sisters of the Poor case, Justice Sotomayor individually issued a temporary order against the mandate, but then her colleagues joined in issuing the order giving that charity an alternative way to avoid the mandate’s duties.

There is no set timetable for either Justice to act, but because of the looming Tuesday deadline, they are likely to respond quickly.

Recommended Citation: Lyle Denniston, Round 2 on birth control developing, SCOTUSblog (Jun. 28, 2014, 9:18 AM),