Washington — The Eternal Word Television Network has asked for a rehearing of its case by the full 11th U.S. Circuit Court of Appeals in its case regarding the federal Health and Human Services contraceptive mandate.
Attorneys for the Becket Fund for Religious Liberty, in a May 4 filing with the court, said federal government briefs filed in the ongoing Supreme Court case of Zubik v. Burwell involving the Little Sisters of the Poor and six other religious employers admit the government could use a less restrictive manner of providing contraceptive coverage to women working for these organizations should they so choose.
The case originated after the government determined that all employers must provide contraceptive coverage to women in health insurance plans or the employer must check a box on a form stating that, as a religious employer, they are not required to provide such coverage. The religious employers argued that even checking the box would violate their religious freedom.
A three-judge panel from the 11th Circuit issued a 2-1 decision against EWTN while the Supreme Court was preparing to listen to initial arguments in Zubik v. Burwell.
The circuit court, headquartered in Atlanta, hears federal cases emanating from Florida, Georgia and Alabama, where EWTN is headquartered.
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Calling the HHS mandate case a "sensitive issue of national importance," EWTN, in its May 4 brief, said the three-judge panel's ruling was "at a minimum, outdated. Since the opinion was issued, the Supreme Court has heard oral argument in seven related cases and ordered supplemental briefing from the parties. That briefing reveals that several of the assumptions underlying the panel opinion are incorrect -- even according to the government's view of the case."
"By the government's own estimate," the brief said, "the total number of beneficiaries of objecting nonprofits who would benefit from receiving mandated coverage through their employer number only in the 'tens of thousands.' "
Using the government's numbers, the brief continued, "that's about 0.09 percent of the number of exempted Americans. Thus, the government exempts or ignores the remaining 99.91 percent of the universe of Americans without mandated coverage -- tens of millions of people -- while targeting a comparative handful of religious ministries."
"One of the big issues in this case is, if the Constitution and the Religious Freedom Restoration Act require that the government has a way to avoid crushing the conscience of a religious person or organization, they have to do that," Becket Fund attorney Adele Keim told Catholic News Service May 5.
In its April 20 filing with the Supreme Court in the Little Sisters case, "the government now openly admits it did not use the least restrictive means for employers with traditional insured plans," the EWTN brief said.
In a footnote to its brief, EWTN said, "After years of insisting that [it] was using such means, the government has now told the Supreme Court that the mandate 'could be modified' to remove the existing form/notice requirement and that the affected women would still 'receive contraceptive coverage seamlessly.' That contradicts the government's prior assertions and the panel's descriptions of insured plans."
EWTN added, "The government itself admits it has alternatives, and 'if a less restrictive means is available for the government to achieve its goals, the government must use it,'" quoting from a unanimous Supreme Court decision last year in favor of a Muslim prisoner in Arkansas who had been denied the right to grow a half-inch beard in accordance with his religious beliefs.
Options cited by the federal government for women to obtain contraceptive coverage if it is not offered by a religious employer, according to Keim, include Medicaid or other government programs, the state exchanges authorized by the Affordable Care Act, a family member's health plan, or the federal Title X plan, which budgets $300 million for free and low-cost contraceptives.
"In the merits brief to the Supreme Court, we've pointed out that the small businesses that have chosen to drop health insurance, including contraceptive coverage. [The government says] 'But they can get contraceptive health coverage all these other ways,' and we say, 'That's our point,' '' Keim told CNS.
If the circuit court denies the 'en banc' petition, Keim said, EWTN has the option of asking the Supreme Court to "hold" the case as seven similar cases are currently before it.