Both because of the fast pace of the developments (lots of action before the new year) and because of the holidays, I am behind on reporting the state of play with respect to the contraception mandate litigation concerning non-profit entities that have not been exempted by the government. Such entities, as I noted here, have received the government’s so-called “accommodation,” which requires that they certify to the government their religious objections to the mandate. There are special rules for “accommodated” self-insured non-profits who self-certify, which details are discussed in full here. Note finally that these suits are distinct from the question of for-profit challenges to the contraception mandate, which the Supreme Court will take up shortly in the Hobby Lobby and Conestoga Wood litigation.
The Becket Fund reports that the tally now stands at 19-1 in favor of the challengers and against the government. Here’s a breakdown which elaborates a little bit on the present procedural posture of the cases (of course with the caveat that the situation is fluid and that I may well have missed additional cases or changes to the cases I list).
I. Number of cases in which an injunction has been issued at the district court level, or where denial of an injunction at the district court level has been overturned by an appellate court (Court of Appeals or United States Supreme Court), barring enforcement of the contraception mandate against “accommodated” entities: 19.
1. E.D.N.Y. (RC Archdiocese v. Sebelius)
2. W.D. Pa. (Zubik v. Sebelius)
3. W.D. Pa. (Persico v. Sebelius)
4. W.D. Pa. (Geneva College v. Sebelius)
5. D.D.C. (as to Thomas Aquinas College in Roman Catholic Archbishop of Washington v. Sebelius)
6. N.D. Indiana (Diocese of Fort Wayne v. Sebelius)
7. N.D. Indiana (Grace Schools v. Sebelius)
8. S.D. Texas (East Texas Baptist University v. Sebelius)
9. W.D. Oklahoma (Southern Nazarene University v. Sebelius)
10. W.D. Oklahoma (Reaching Souls International, Inc. v. Sebelius)
11. E.D. Mich. (Legatus v. Sebelius)
12. E.D. Mich. (Ave Maria Foundation v. Sebelius)
13. E.D. Missouri (CNS Int’l Ministries v. Dept. of HHS)
14. E.D. Tex. (Catholic Diocese of Beaumont v. Sebelius)
15. N.D. Tex. (Catholic Diocese of Fort Worth v. Sebelius)
In an additional three lawsuits, district courts had ruled against the religious claimants. But circuit court decisions have reversed those findings and granted emergency motions for injunctions pending appeal (which requires a finding of likelihood of success on the merits as well). Those are:
16. D.C. Circuit (Priests for Life v. US Department of Health and Human Services)
17. Sixth Circuit (Catholic Diocese of Nashville v. Sebelius)
18. Sixth Circuit (Michigan Catholic Conference v. Sebelius)
Finally, in one law suit, both the district court and the Tenth Circuit had denied injunctive relief. But Justice Sotomayor granted emergency injunctive relief on December 31, 2013. The government has now filed its brief and the religious claimant (the Little Sisters of the Poor) has filed its reply:
19. United States Supreme Court (Little Sisters of the Poor Home for the Aged v. Sebelius)
II. Number of cases in which an injunction has been denied at both the federal district and circuit court levels: 1.
1. N.D. Indiana and Seventh Circuit (University of Notre Dame v. Sebelius)