On Wednesday a three-judge panel of the Eighth Circuit Court of Appeals issued the first appellate court order blocking the birth control benefit in Obamacare as anti-choice activists do their best to fast-track the issue for Supreme Court review.
The decision came from an appeal in the case of Frank R. O’Brien and O’Brien Industrial Holdings, a for-profit holding company based in St. Louis that explores, mines and processes refractory and ceramic raw materials around the world. In October, a federal district judge dismissed O’Brien’s lawsuit, rejecting “the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise.”
O’Brien immediately appealed the dismissal and also asked the appellate court to block the mandate from taking effect while that appeal moved forward. On Wednesday the appeals court agreed 2-1 to do so.
Like similar rulings at the district court level in other challenges to the contraception mandate, Wednesday’s decision only pertains to the parties to the lawsuit. It’s a disappointing development in what had been the most decisive judicial victory yet on the birth control benefit, but it is not a surprising one. The Eighth Circuit is a more conservative appellate circuit and requests for emergency relief preventing a law from applying to a party while an appeal on the merits is pending are common.
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The administration could ask the full Eighth Circuit to review the panel’s order for an injunction. If they do not, or if such a request is denied, then at least one secular, for-profit employer will have been in effect granted immunity by the federal courts from complying with the law under the auspices of religious freedom.
In an order issued Wednesday, a federal appeals court in Chicago struck a blow to voting rights advocates, staying a trial court order that would have allowed residents to vote without complying with the state’s photo identification requirement.
The trial court order, issued by District Court Judge Lynn Adelman last month, did not strike the law outright, but instead carved out an exception to it. It would have permitted voters who are unable to obtain an ID to sign an affidavit testifying to that inability and receive a ballot to vote.
A three-judge panel of the Seventh Circuit Court of Appeals, including one judge, Diane Sykes, whom Donald Trump named as a potential U.S. Supreme Court appointee, pointed out that the exception was overly broad and “likely to be reversed on appeal.”
In April of this year, the same three-judge panel issued a ruling in the case that entitled anyone eligible to vote in Wisconsin, but who could not obtain a qualifying photo ID with reasonable effort, to an accommodation that would permit that voter to cast a ballot.
But on Wednesday, that panel criticized the injunction Adelman issued, noting that Adelman had failed to identify specific voters who would not be able to “obtain a qualifying photo ID with reasonable effort.” Instead, the panel argued, Adelman’s injunction would have permitted any registered voter to declare by affidavit that their reasonable effort would not produce a photo ID, even if that voter had never tried to secure a voter ID and even if a hypothetical effort to obtain the requisite ID would, by objective standards, be reasonable and would succeed.
The court of appeals pointed out that in upholding Indiana’s voter ID law in Crawford v. Marion County Election Board, the Supreme Court held in 2008 that “the inconvenience of making a trip to the [department of motor vehicles], gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.”
Because the district court did not attempt to define a substantial obstacle to voting, versus a particular voter’s unwillingness to make the sort of reasonable effort that the Supreme Court already held in Crawford that a state can require, the court of appeals said the injunction is likely to be reversed on appeal.
The order marks a loss for voting rights advocates, who had recently seen victories in Texas, North Carolina, and North Dakota, where federal courts had weakened or entirely tossed out voter ID laws.
Like Republicans in those states, conservatives in Wisconsin, including former Republican Party presidential candidate Gov. Scott Walker, have argued that voter ID laws are necessary to prevent voter fraud, even though voter fraud has been found to be almost nonexistent in other Republican-led investigations.
It is unclear whether lawyers challenging the law will ask the Seventh Circuit for a rehearing en banc (before the full court) or will immediately petition the Supreme Court for review. Reports that North Carolina Gov. Pat McCrory will ask the Supreme Court to weigh in on that state’s voter ID law, however, make it increasingly likely that the Court will weigh in as soon as the next term.
You may remember the Little Sisters of the Poor—that group of earnest nuns who challenged the process for accommodating religious objections to the birth control benefit in the Affordable Care Act. The Little Sisters, along with dozens of other religiously affiliated nonprofits, have continuously argued that the act of completing a form to be legally excused from complying with the law substantially burdens their religious rights.
Well, the Little Sisters remain tied up in litigation with the Obama administration over birth control, nondiscriminatory insurance coverage, and their religious objections to providing for both. But there’s more at stake here. To be clear, the Sisters are intent on doing everything they can to block comprehensive insurance coverage for their employees, and block third parties from providing it to them as well. But buried in litigation footnotes is a provision of employee benefits law that, if the Sisters and other religiously affiliated organizations get their way, will solidify another pass for discriminatory corporate practices beyond contraception coverage alone.
The Employee Retirement Income Security Act, or ERISA, is the federal law governing employee benefit plans, including retirement accounts and health insurance. Both the Department of Labor (DOL) and the Internal Revenue Service (IRS) are charged with ensuring ERISA compliance, which, as you can imagine, makes ERISA a prime target for conservatives who already hate “big government.”
Employer plans governed by ERISA have a few requirements that particularly draw conservative ire. One mandates that employer-sponsored retirement plans meet certain minimum funding levels by the employer. This is to help those plans be meaningful ways for employees to save for retirement, without putting the entire burden on those workers. Another provision forbids those plans from discriminating in benefits, such as matching a higher percentage of a male employee’s retirement contributions than a female one’s, or providing comprehensive health insurance coverage for men but not women. The ACA’s birth control benefit draws upon this theory.
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However, not all employers are required to follow ERISA. In particular, the statute exempts “church plans” from its requirements. ERISA defines church plans as those “established and maintained … for its employees … by a church or by a convention or association of churches which is exempt from tax under section 501 of the Internal Revenue Code.” Church plans also include those plans maintained by an organization “controlled by or associated with a church or by a convention or association of churches.” The rationale behind the church plan exemption is similar to the rationale behind most religious or ministerial exemptions to other nondiscrimination laws: Religious orders and institutions like churches and synagogues will generally employ people who follow the same religious tenets as they do because those organizations are engaged in spiritual outreach as part of their “business.”
That prohibition on ERISA governing “church plans” is also incorporated into the ACA.
Historically, organizations like the Little Sisters have had a regulatory pass when it came to maintaining retirement plans and insurance coverage that are either underfunded, discriminatory, or both. That’s because both the DOL and the IRS have been generous in their determination of how they interpret “controlled by or associated with a church or by a convention or association of churches.” And if those agencies determine that an organization has a “church plan,” that, in turn, means it won’t be subjected to a tax penalty for not complying with the ACA’s birth control benefit.
Given the explosion of religiously affiliated employers like hospitals and nursing homes, however, the scope of what does and does not qualify as a church plan has become an increasingly important issue. As religiously affiliated employers began to grow well beyond employing people of similar tenets, away from their ministerial core and into marketplace competition with secular, for-profit businesses, it has made less and less sense to allow those employers a pass to discriminate under ERISA.
At least that’s the argument advanced in a flurry of lawsuits challenging the scope of the church plan exemption under ERISA. Those lawsuits include one against Dignity Health Care, the Catholic-affiliated hospital system facing separate lawsuits related to failing to offer comprehensive reproductive health care at its hospitals. According to the allegations in the complaint, Dignity repeatedly underfunded its retirement plan in violation of ERISA. Dignity responded by arguing its plans were church plans and not subject to ERISA oversight.
Neither the district court nor the Ninth Circuit Court of Appeals bought Dignity’s argument, holding there was no way that when Congress created the church plan exception, it intended the exemption to stretch as far as to shield the country’s fifth-largest health-care employer from regulatory oversight.
That question presented in the Dignity case—of just how broadly that exemption extends—could end up before the U.S. Supreme Court next term. The Roberts Court is considering a pair of cases with this exact issue at their center. Both involve religiously affiliated hospitals, and both have appellate court decisions ruling that organizations like Dignity, which are not actually churches nor actually maintained by religious orders, may not qualify for the church plan exemption.
Which brings us back to the Little Sisters, on whose cases these organizations will undoubtedly base some of their own arguments. The Little Sisters do have a church plan. And it should mean that they will never have to comply with the birth control benefit anyway—which would give them no standing to challenge the ACA’s accommodation. But this is not the argument the Little Sisters and their attorneys want the courts or the public to hear. Instead, the litigation has focused on whether or not completing the form for the birth control accommodation would be a substantial burden for the nuns, despite the fact that at this point under ERISA, there is no question that the federal government could penalize the Little Sisters for refusing to comply with the contraception benefit.
However, the Little Sisters are more than just a group of nuns. They own and operate facilities that employ and serve others. The DOL and IRS have, to date, agreed that the Little Sisters benefits plan is in fact a church plan. But that is in part because without switching plan administrators, the question of whether or not their employee benefits package still qualifies for the exemption has not arisen again. If and when the Little Sisters do switch plans or administrators, the status of their benefits exemption will come up.
At some point during oral arguments in March in Zubik v. Burwell, the conglomerate of cases challenging the accommodation process to the birth control benefit, the fact that the Little Sisters had a church plan and would never be subject to having to comply with the benefit did come up. Paul Clement, who represented the nuns, skillfully dodged the question of whether there was a church plan issue for the Little Sisters. Instead of acknowledging that fact—one even established in the record as an assumption the Tenth Circuit Court of Appeals was making earlier in the litigation to move the case along—Clement assured the justices the church plan wasn’t really something the Court needed to concern itself with at the moment.
Maybe that’s because Clement and the nuns were hoping that if nobody noticed the pass given Little Sisters in their challenge to the birth control benefit, nobody would notice when hospitals and nursing homes also argue for the right to provide discriminatory retirement benefits and cite Zubik for their authority to do so. Maybe they didn’t know about the fight brewing in the appellate courts over which enormous corporate entities are shielded from regulatory nondiscrimination laws like provisions in ERISA and the ACA.
That seems unlikely, though, doesn’t it?
While it may be dry as toast, the church plan exemption under ERISA is critically important. As we’ve seen throughout the nonprofit challenges to the birth control benefit, when employers are allowed to opt out, the effect disproportionately falls on poor women and women of color. And the wages offered to hospital and nursing home workers? They hardly are the kind to lift a person up to more stable financial footing. Which is all another way to say that conservatives’ assertions that institutions like Dignity Health fulfill some spiritual mission and should therefore be treated like a church are all smoke and bluster. Instead, these institutions want cover for ongoing attempts to nickel-and-dime their own workers and to discriminate, based on religious beliefs, when it comes to how and whom these institutions serve. And they’re hoping the Roberts Court will give it to them this next term.