HHS Urges Top Court Not To Grant Emergency Injunction During ACA Appeal

WASHINGTON, D.C. — (Mealey’s) The Supreme Court should deny a nonprofit Christian liberal arts college’s request for an emergency injunction of the Patient Protection and Affordable Care Act (ACA) contraceptive mandate while it appeals an adverse ruling, the government said July 2 in its first post-Burwell v. Hobby Lobby Stores Inc. (573 U.S. ___ [2014]) filing (Wheaton College v. Sylvia Mathews Burwell, et al., No. 13A1284, U.S. Sup.).  

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Nonprofit Christian liberal arts college Wheaton College filed suit in the U.S. District Court for the Northern District of Illinois, seeking to enjoin implementation of the ACA’s contraceptive mandate.  Wheaton College provides health insurance to employees and students and opposes abortion and abortifacient contraceptives.  Wheaton alleged that while it was eligible for an accommodation, it should be eligible for an exemption and that complying with the mandate would violate its rights under the Religious Freedom Restoration Act (RFRA).

Wheaton College named Sylvia Burwell, secretary of the Health and Human Services; the U.S. Department of Health and Human Services; Thomas Perez, secretary of Labor; the Department of Labor; Jacob Lew, secretary of the Treasury; and the Department of the Treasury. 

Reconsideration 

On June 23, Judge Robert M. Dow Jr. denied Wheaton College’s request for an injunction.  Judge Dow said that although there is no question that Wheaton College’s beliefs are sincere, the requirement that it fill out a form to opt out of the mandate cannot be construed as a substantial burden on its religious exercise.  

In its motion for reconsideration, Wheaton College argued that absent an injunction, it must shutter its insurance plans or face “crippling federal fines.”  On June 30, Judge Dow denied the motion. 

7th Circuit 

Wheaton appealed to the Seventh Circuit U.S. Court of Appeals and moved for an injunction pending appeal.  On June 30, a panel comprising Judges Richard A. Posner, Ann Claire Williams and David F. Hamilton denied the relief. 

Wheaton filed an application with the U.S. Supreme Court seeking injunctive relief while it appeals. 

Justice Elena Kagan granted a temporary injunction on June 30 and ordered briefing.  Justices Stephen Breyer and Sonia Sotomayor dissented. 

Government Responds 

In its brief, the government argues that unlike the plaintiffs at issue in Hobby Lobby, which the Supreme Court issued June 30, Wheaton can already opt out of the mandate by self certifying that it objects the coverage. 

“By doing so, it will avoid any requirement that it ‘contract, arrange, pay, or refer for contraceptive coverage’ to which it objects,” the government argues.  In Hobby Lobby, the court found that this opt-out allowed the government to achieve its aims while still respecting religious liberty, the government argues. 

Wheaton’s argument that the opt-out itself violates the RFRA lacks merit, the government argues.  But even if Wheaton is correct that the opt-out burdens its religious beliefs, the opt-out remains the least restrictive method of furthering compelling government interests, the government argues. 

“Applicant seeks extraordinary relief based on the extraordinary claim that it has the right not only to opt out of providing or arranging contraceptive coverage itself, but also to prevent the government from alleviating the resulting harm to its employees and students by ensuring that others provide or arrange the coverage instead.  Nothing in RFRA supports such a sweeping claim,” the government argues. 

Mark L. Rienzi of the Becket Fund in Washington represents Wheaton College.  Donald B. Verrilli Jr. of the U.S. Department of Justice in Washington represents the government.

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