Instead of dropping the cases, however, the administration indicated that it intends to take the next step in the litigation process. On Tuesday, the Washington Post reported that the Justice Department had asked a federal appeals court for 60 extra days to negotiate an agreement with East Texas Baptist University and several other plaintiffs challenging the mandate. The Supreme Court last year had instructed the Obama administration to negotiate with the plaintiffs as the next step in the litigation process.
The Becket Fund said that the same lawyers that litigated the cases on behalf of the Obama administration are still on the mandate cases now under the Trump administration.
The HHS mandate was formed under the Affordable Care Act, which required preventive coverage in employer health plans. Obama’s Department of Health and Human Services interpreted this to include coverage for contraceptives, sterilizations, and drugs that can cause abortions.
After a wave of criticism from religious employers to the original mandate, the Obama administration announced an “accommodation” whereby objecting non-profits would tell the government of their opposition, and their insurer or the third party administrator for the plans would be notified separately to include the coverage.
Many non-profits – including Catholic dioceses and the Little Sisters of the Poor – said that the process still forced them to cooperate in immoral behavior against their consciences. Some critics voiced concern that the cost of coverage would still end up getting passed along to the objecting employers in the form of higher premiums.
Hundreds of non-profits and other plaintiffs filed lawsuits over the mandate, even with the accommodation. Among these plaintiffs is EWTN Global Catholic Network. CNA is part of the EWTN family.
A number of those cases made their way to the Supreme Court in Zubik v. Burwell. Plaintiffs in the case include East Texas Baptist University, the Little Sisters of the Poor, the Archdiocese of Washington, and other dioceses, schools, and charities.
In March of 2016, the Court asked both the plaintiffs and the government to submit briefs explaining whether a compromise could be reached that provided for cost-free contraceptive coverage for employees and yet still respected the religious freedom of the objecting non-profits.
That request, which came after oral arguments and in the middle of the case, was almost unprecedented in its timing.
After both parties outlined ways where they believed both goals could be achieved, the Supreme Court last May sent the cases back to the federal circuit court level, vacated the previous decisions of those courts, ordered the government not to enforce the fines against plaintiffs for not complying with their demands, and instructed the courts to give the parties time to find a solution they could agree on.
“Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage’,” the Court stated.
“We anticipate that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them.”
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Bishop David Zubik of Pittsburgh, one of the plaintiffs in the cases, said in August that the federal government had “an extremely aggressive interpretation” of the Supreme Court’s instructions and was “apparently trying to take over” the diocese’s health plans.