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ACA and Healthcare Reform

11th Circuit Cites Hobby Lobby, Enjoins Mandate During Appeal

MONTGOMERY, Ala. — (Mealey’s) A Catholic media outlet is entitled to an injunction while it appeals rejection of its Patient Protection and Affordable Care Act (ACA)’s contraceptive mandate challenge in light of Burwell v. Hobby Lobby (Nos. 13-354, 13-356, U.S. Sup. [ subscribers may access Supreme Court briefs and an enhanced opinion for this case]), an 11th Circuit U.S. Court of Appeals panel held June 30 (Eternal Word Television Network Inc. and State of Alabama v. Secretary, U.S. Department of Health and Human Services, et al., No. 14-12696, 11th Cir.). 

(This story is an excerpt from Mealey's Affordable Care Act Report.  For information on how to subscribe to this new monthly report, please contact your LexisNexis account representative or call 800-223-1940.) 

In its June 30 ruling in Hobby Lobby, the U.S. Supreme Court found that the Religious Freedom Restoration Act applied to closely held corporations and that the ACA contraceptive mandate substantial burdened the business owners’ religious beliefs. 

Eternal Word Television Network Inc. (EWTN) and the State of Alabama filed suit in the U.S. District Court for the Southern District of Alabama against Sylvia Matthew Burwell as the secretary of Health and Human Services and the U.S. Department of Health and Human Services, claiming that the ACA required coverage for contraceptive and sterilization procedures the plaintiffs found abhorrent and against their religious beliefs.  EWTN argued that the opt out available to it by signing Form 700 merely facilitated the coverage of contraceptives with which it disagreed. 

EWTN, which employs 350 full-time employees and is the largest Catholic media network in the world, also named Jacob Lew, the U.S. Department of the Treasury and Thomas Perez and the U.S. Department of Labor. 

No ‘Illicit Move’ 

The government moved for dismissal or summary judgment, and the plaintiffs moved for summary judgment. 

In orders issued June 17 and 18, Judge Callie V.S. Granade rejected the plaintiffs’ claim that the contraceptive mandate interferes with internal religious governance.  The mandate neither suppresses religious exercise nor discriminates among religions, and there is no evidence that the government had an “illicit motive” when it enacted the mandate, Judge Granade said. 

Judge Granade then said that because EWTN is free to opt out of providing the challenged products and procedures, there can be no discrimination. 

On June 18, Judge Granade stayed the surviving claims pending appeal. 

The plaintiffs appealed. 


An 11th Circuit panel granted EWTN an injunction pending appeal in light of the ruling in Burwell v. Hobby Lobby (Nos. 13-354, 13-356, U.S. Sup.) and denied as moot its request for expedited briefing and argument. 

Judges William H. Pryor, Beverly B. Martin and Adalberto Jordan participated in the opinion. 

In special concurrence, Judge Pryor wrote that he believed EWTN was likely to succeed on the merits.  EWTN alleges that the ACA’s mandate forces it to forgo its religious beliefs and cooperate in evil, Judge Pryor said. 

“If that is not a substantial burden on the free exercise of religion, then it is hard to imagine what would be. 

“The argument of the United States calls to mind the proverbial Mizaru, Kikazaru, and Iwazaru who cover their eyes, ears, and mouth to see, hear and speak no evil.  That is, the United States turns a blind eye to the undisputed evidence that delivering Form 700 would violate the Network’s religious beliefs,” Judge Pryor said. 

Daniel Howard Blomberg and Lori Windham of The Becket Fund for Religious Liberty in Washington, D.C., and Stuart Kyle Duncan of Duncan in Washington represent EWTN.  Andrew L. Brasher and William G. Parker Jr. of Montgomery represent Alabama.  Bradley Philip Humphreys of the U.S. Department of Justice in Washington represents the government.

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