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HHS barred from enforcing mandate on Catholic entities in Georgia
Catholic News Service

ATLANTA — U.S. District Court Judge William Duffey Jr. has ruled that two organizations affiliated with the Atlanta Archdiocese — Catholic Charities Atlanta and Catholic Education of North Georgia Inc. — cannot be forced to comply with the Affordable Care Act's contraceptive mandate.

In a 91-page decision issued March 26, Duffey ruled that enforcement of  final rules issued by U.S. Department of Health and Human Services' last  June to implement the mandate violated the Catholic organizations' First Amendment right of freedom of speech, as well as protections established under the Religious Freedom Restoration Act.

His ruling permanently enjoined HHS from enforcing the contraceptive mandate against Catholic Charities Atlanta and Catholic Education of North Georgia Inc., or CENGI.

The Atlanta Archdiocese and Atlanta Archbishop Wilton D. Gregory and the Savannah Diocese and Savannah Bishop Gregory J. Hartmayer were the plaintiffs who filed the federal lawsuit, along with Catholic Charities and the Catholic education corporation.

They filed suit against HHS and Secretary Kathleen Sebelius in the U.S. District Court for the Northern District of Georgia in October 2012.

In his ruling Duffey said the two dioceses were already exempt from having to provide the contraceptive coverage in their health plans because they are considered to be "religious employers" under the final rules.

However, the two affiliated corporations are not considered exempt and must pursue what the Obama administration terms an "accommodation" and use a third party to provide the coverage.

The mandate requires nearly all employers to provide their employees with health insurance coverage for contraceptives, some abortion-inducing drugs and sterilizations. It includes an exemption for some religious employers that fit its criteria. The mandate does not include a conscience clause for employers who object to such coverage on moral grounds.

There also is the so-called accommodation for nonexempt employers, requiring them to use a third party to pay for coverage they find objectionable, but Catholic and other entities that have filed lawsuits against the mandate say the accommodation still does not solve their problem over being involved in providing coverage they reject for moral reasons.

The accommodation would require Catholic Education of North Georgia and Catholic Charities to complete a form to give to a third-party -- their insurance plan's administrator -- who, in turn, would be required to provide the contraceptive coverage and be reimbursed under federal health exchanges.

Not applying for the accommodation would have meant a daily fine of $100 per employee. Cancellation of the entire health plan to avoid the contraceptive mandate would have meant an annual fine of $2,000 per person. Also, the Catholic education corporation and Catholic Charities were not permitted under the final rules to communicate their religious beliefs about contraception to the third-party administrator.

"The government has imposed a blanket ban on CENGI and Catholic Charities prohibiting them from a wide spectrum of communications, including merely advising or persuading a TPA (third-party administrator) to not provide contraceptive coverage. The government has not offered any explanation for justifying the infringement on the nonexempt plaintiffs' freedom of speech," wrote Duffey. "Plaintiffs are entitled to summary judgment on their claim that final rules unconstitutionally restrict their freedom of speech."

Duffey also said the contraceptive mandate and the accommodation violated protections under the Religious Freedom Restoration Act. The 1993 law says the government "shall not substantially burden a person's  exercise of religion" unless that burden is the least restrictive means to further a compelling governmental interest.

The law firm of Smith, Gambrell & Russell of Atlanta and attorneys E. Kendrick Smith and Janine Metcalf of the international firm of Jones Day, represented the Catholic dioceses and organizations. They provided their services pro bono.

Attorney Stephen M. Forte, managing partner of Smith, Gambrell & Russell, said the injunction issued by the federal court is permanent unless overturned on appeal to the 11th U.S. Circuit Court of Appeals.

He said the decision of the U.S. District Court for the Northern District of Georgia in Atlanta is not binding on other federal cases, "but it could be instructive or persuasive to other courts considering similar issues involving religious-based parties."

Forte said that the court's order and opinion is significant.

"The artificial distinction that the government seeks to draw between the church as a house of worship (the archdiocese) and the social service, charitable and educational activities of the church through related religious organizations, such as CCA and CENGI, is inappropriate," he said.

"The social service, charitable and educational activities of the church cannot be separated from the identity and mission of the church itself," he added.

Bishop Hartmayer called Duffey's ruling encouraging.

"I am pleased to live and serve in the state of Georgia where there is still a defense and a respect for the religious freedom to be exercised by all citizens who live and work here," he said in a statement.

"The judge's argument addressed the fallacy that the new federal rules established an 'accommodation' for group health plans that may be exempted from the contraceptive mandate," he added.

"The battle to defend the right to life is far from over. We must continue to be vigilant and unified in upholding the sanctity of all human life," Bishop Hartmayer said.

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