News Law and Policy

Supreme Court Temporarily Blocks Contraception Mandate for Some Catholic Groups

Jessica Mason Pieklo

In a narrow New Year's Eve ruling, Justice Sonia Sotomayor blocked the contraception mandate from applying to a group of Catholic employers, while the Supreme Court considers taking up whether the accommodation for religiously affiliated employers goes far enough.

On Tuesday, just hours before the birth control benefit in the Affordable Care Act was set to take effect, Supreme Court Justice Sonia Sotomayor granted an injunction and temporarily blocked the requirement from applying to a handful of Catholic nonprofit businesses. The ruling applies only to the parties in the case and does not affect the contraception benefit as a whole, but it does raise questions as to whether the Roberts Court is interested in looking at the contraception mandate, and all its exemptions, as a whole later this spring.

The injunction was issued in the case of Little Sisters of the Poor, a Catholic religious order that operates assisted living facilities. The suit, first filed in September, seeks class-action status on behalf of hundreds of Catholic nonprofits, and challenges the accommodation to the law’s requirement that employers provide insurance coverage for contraception. Under the Affordable Care Act, as of January 1 all employer-provided insurance plans are required to provide insurance coverage for contraception, with the exception of houses of worship and other organizations that are primarily religious in purpose. Another exemption exists for religiously affiliated nonprofits like hospitals and universities. Under the law, those organizations don’t have to offer contraception coverage, but they must complete a form so that their employees can access contraception coverage directly. According to the Little Sisters of the Poor and the other nonprofits that have sued to block the accommodation, the law’s requirement that some religiously affiliated employers sign a form by which they can opt out of the benefit under an accommodation the Department of Health and Human Services developed last year violates their religious liberties.

The order temporarily blocking the requirement gives the Obama administration until Friday to file its response. Once the administration has responded, Justice Sotomayor will reconsider the injunction herself or refer the matter to the entire Supreme Court for consideration. (Sotomayor is overseeing the case because she is the justice assigned to the federal circuit where the lawsuit was first filed.)

“The Affordable Care Act ensures that women can access birth control without co-pays no matter where they work, just like any other kind of preventive care,” said Cecile Richards, president of the Planned Parenthood Federation of America, in a statement. “Religiously affiliated organizations, including the two that filed this emergency appeal at the Supreme Court, are already able to get an exemption so that they aren’t paying for or administrating coverage of birth control if it violates their religious mission. This exemption ensures that women can get access to affordable birth control no matter where their work, while also addressing the concerns of religiously affiliated organizations.”

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The New Year’s Eve ruling came after a flurry of rulings from federal appellate courts on the accommodation, including a unanimous ruling from the Seventh Circuit denying an injunction in Notre Dame’s challenge to the accommodation, and a ruling from the Sixth Circuit in which a divided panel upheld the grant of an injunction in a case brought by the Catholic Diocese of Nashville and a handful of other Catholic plaintiffs. The D.C. Circuit Court of Appeals also granted an injunction in the Priests for Life case. In all, 45 religiously affiliated nonprofits have filed lawsuits in federal court arguing that filling out the form to allow their employees to access birth control is a substantial burden on their religious liberties.

Along with the Little Sisters of the Poor case, the Supreme Court received at least three other emergency filings Tuesday from Catholic groups seeking to avoid complying with the law. No orders in those requests have yet been issued.

News Law and Policy

No Need to Block Bathroom Access for Transgender Student, Attorneys Tell Supreme Court

Jessica Mason Pieklo

A transgender student in Virginia sued the local school board, arguing that its policy of mandating that students use bathrooms consistent with their “biological sex” rather than their gender identity was unconstitutional.

Attorneys representing transgender student Gavin Grimm told the U.S. Supreme Court this week that there was no reason to block a lower court order guaranteeing Grimm access to school restrooms that align with his gender identity while Grimm’s lawsuit against the Gloucester County School Board proceeds.

Grimm in 2015 sued the school board, arguing that its policy of mandating that students use bathrooms consistent with their “biological sex” rather than their gender identity—thus separating transgender students from their peers—was unconstitutional. Attorneys representing Grimm argued that the policy violates the 14th Amendment and Title IX of the U.S. Education Amendments of 1972, a federal law prohibiting sex-based discrimination at schools that receive federal funding.

A lower district court ruled the school board’s policy did not violate Grimm’s rights. But the Fourth Circuit Court of Appeals disagreed, reversing that decision and sending the case back to the lower court, which then blocked the school district from enforcing its policy while Grimm’s case proceeds.

In response, the school board notified the Fourth Circuit of its intent to appeal that decision to the Supreme Court and requested the appellate court stay its order granting Grimm access to bathrooms aligned with his gender identity—a decision the Fourth Circuit granted in June.

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The school board then asked the Roberts Court to issue an emergency stay of the lower court decision blocking its bathroom policy while the Court considers taking Grimm’s case.

Grimm’s attorneys argue there is no basis for the Roberts Court to grant the emergency stay requested by the school board. The board has “utterly failed to demonstrate that it will suffer irreparable harm” if Grimm is allowed to use the boys’ restroom at Gloucester High School while the Roberts Court considers stepping into the case at all, according to Grimm’s attorneys.

Attorneys for the school board filed their request with Chief Justice John Roberts, who handles petitions from the Fourth Circuit. Roberts can rule on the school board’s request to block the lower court decision, or he can refer the request to the entire Court to consider.

It is not known when Roberts or the Court will make that choice.

The Gloucester County School Board has argued that the Obama administration overstepped its authority in protecting transgender student rights. Attorneys for the school board said that overreach began in 2012, when an administration agency issued an opinion that said refusing transgender students access to the bathrooms consistent with their gender identity violated Title IX.

The administration expanded that opinion in October 2015 and filed a friend of the court brief on Grimm’s behalf with the Fourth Circuit, arguing it was the administration’s position that the school board’s policy violated federal law.

The administration again expanded that opinion in May this year into a directive stating that should publicly funded schools deny transgender students access to facilities that conform to students’ gender identity, they would be in violation of federal law, subject to lawsuits, and risking their federal funding.

The Fourth Circuit relied heavily on these actions in initially siding with Grimm earlier this year.

News Law and Policy

Three Crisis Pregnancy Centers Served for Breaking California Law

Nicole Knight Shine

The notices of violation issued this month mark the first time authorities anywhere in the state are enforcing the seven-month-old Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act.

The Los Angeles City Attorney is warning three area fake clinics, commonly known as crisis pregnancy centers (CPCs), that they’re breaking a new state reproductive disclosure law and could face fines of $500 if they don’t comply.

The notices of violation issued this month mark the first time authorities anywhere in the state are enforcing the seven-month-old Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act, advocates and the state Attorney General’s office indicate.

The office of City Attorney Mike Feuer served the notices on July 15 and July 18 to two unlicensed and one licensed clinic, a representative from the office told Rewire. The Los Angeles area facilities are Harbor Pregnancy Help Center, Los Angeles Pregnancy Services, and Pregnancy Counseling Center.

The law requires the state’s licensed pregnancy-related centers to display a brief statement with a number to call for access to free and low-cost birth control and abortion care, and for unlicensed centers to disclose that they are not medical facilities.

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“Our investigation revealed,” one of the letters from the city attorney warns, “that your facility failed to post the required onsite notice anywhere at your facility and that your facility failed to distribute the required notice either through a printed document or digitally.”

The centers have 30 days from the date of the letter to comply or face a $500 fine for an initial offense and $1,000 for subsequent violations.

“I think this is the first instance of a city attorney or any other authority enforcing the FACT Act, and we really admire City Attorney Mike Feuer for taking the lead,” Amy Everitt, state director of NARAL Pro-Choice California, told Rewire on Wednesday.

Feuer in May unveiled a campaign to crack down on violators, announcing that his office was “not going to wait” amid reports that some jurisdictions had chosen not to enforce the law while five separate court challenges brought by multiple fake clinics are pending.

Federal and state courts have denied requests to temporarily block the law, although appeals are pending before U.S. Court of Appeals for the Ninth Circuit.

In April, Rebecca Plevin of the local NPR affiliate KPCC found that six of eight area fake clinics were defying the FACT Act.

Although firm numbers are hard to come by, around 25 fake clinics, or CPCs, operate in Los Angeles County, according to estimates from a representative of NARAL Pro-Choice California. There are upwards of 1,200 CPCs across the country, according to their own accounting.

Last week, Rewire paid visits to the three violators: Harbor Pregnancy Help Center, Los Angeles Pregnancy Services, and Pregnancy Counseling Center.

Christie Kwan, a nurse manager at Pregnancy Counseling Center, declined to discuss the clinic’s noncompliance, but described their opposition to the state law as a “First Amendment concern.”

All three centers referred questions to their legal counsel, Alliance Defending Freedom (ADF), an Arizona-based nonprofit and frequent defender of discriminatory “religious liberty” laws.

Matt Bowman, senior counsel with ADF, said in an email to Rewire that forcing faith-based clinics to “communicate messages or promote ideas they disagree with, especially on life-and-death issues like abortion,” violates their “core beliefs” and threatens their free speech rights.

“The First Amendment protects all Americans, including pro-life people, from being targeted by a government conspiring with pro-abortion activists,” Bowman said.

Rewire found that some clinics are following the law. Claris Health, which was contacted as part of Feuer’s enforcement campaign in May, includes the public notice with patient intake forms, where it’s translated into more than a dozen languages, CEO Talitha Phillips said in an email to Rewire.

Open Arms Pregnancy Center in the San Fernando Valley has posted the public notice in the waiting room.

“To us, it’s a non-issue,” Debi Harvey, the center’s executive director, told Rewire. “We don’t provide abortion, we’re an abortion-alternative organization, we’re very clear on that. But we educate on all options.”

Even so, reports of deceit by 91 percent of fake clinics surveyed by NARAL Pro-Choice California helped spur the passage of the FACT Act last October. Until recently, a person who Googled “abortion clinic” might be directed to a fake clinic, or CPC.

Oakland last week became the second U.S. city to ban false advertising by facilities that city leaders described as “fronts for anti-abortion activists.” San Francisco passed a similar ordinance in 2011.