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Backgrounder: Getting a health care bill through Congress fraught with difficulties

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Catholic News Service

WASHINGTON — When the vice president has to cast a vote to break a tie in the Senate on whether to debate U.S. health care policy, let alone revise it, as Mike Pence did July 25, it is obvious that passing legislation to repeal, and/or replace, and/or reform the Affordable Care Act (ACA) is going to be a heavy lift in Congress. Read more »

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Supreme Court upholds health care subsidies in states with federal exchanges

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Catholic News Service

WASHINGTON (CNS) — Writing that “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” a 6-3 majority of the Supreme Court June 25 upheld tax subsidies for participants in health care exchanges run by the federal government in states that refused to create them.

In the majority opinion, Chief Justice John Roberts disentangled what he said was “more than a few examples of inartful drafting” in how the 2010 law was written that contributed to the interpretation that federal subsidies for people with lower income should only be available to residents of states that created their own health care exchanges. Read more »

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Phila. archdiocese sues to stop federal mandate for contraception coverage

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Catholic News Service

PHILADELPHIA — The Archdiocese of Philadelphia and its Catholic Charities affiliates sued three agencies of the U.S. federal government June 2 seeking relief from the federal mandate that most employers cover contraceptives in their employee health plans.

Under the federal health care law, the Department of Health and Human Services issued regulations requiring that employee health care coverage include contraception, sterilization procedures and potentially abortion-causing drugs, all of which violate Catholic Church teaching on the sanctity of human life.

The suit against HHS and the departments of Labor and Treasury, all of which have issued similar regulations under the Patient Protection and Affordable Care Act of 2010, was filed by the law firm Conrad O’Brien on behalf of the archdiocese in the U.S. District Court for the Eastern District of Pennsylvania in Philadelphia.

The archdiocese’s suit also named as defendants Kathleen Sebelius, former HHS secretary; Labor Secretary Thomas E. Perez and Treasury Secretary Jacob “Jack” Lew.

In a statement June 3, the archdiocese said its suit was “grounded on the Religious Freedom Restoration Act and the First Amendment” of the Constitution, and it asks the court “to block enforcement of portions of the Affordable Care Act (ACA) that force religious employers to provide contraceptive services that violate Catholic belief.”

The Philadelphia archdiocese qualifies as a religious employer so it enjoys an exemption to provide contraceptive services. But Catholic Charities, and the 16 social service and health care agencies that comprise it, does not qualify.

“Houses of worship,” including churches and dioceses, are exempt, but religious institutions within a diocese, such as schools, universities, social service agencies and hospitals are not exempt.

The mandate does not include a conscience clause for employers who object to such coverage on moral grounds.

The filing of the archdiocese’s lawsuit “disputes the government’s power to order Catholic entities to offer or cooperate in such services,” the statement read.

There are only two options for Catholic Charities, the archdiocese and other dioceses that have filed similar lawsuits: These Catholic organizations can sign a form stating that a third-party provider will offer the objectionable services, but the organizations will still pay indirectly for services that are contrary to Catholic teaching, or they can refuse to sign the form and be subject to fines of $100 per each beneficiary for each day of noncompliance.

With 1,600 subscribers in the archdiocesan health care plan, Catholic Charities’ fines would amount to $160,000 per day. In only six months, the fines would reach nearly $1 million.

The potential financial duress would begin soon. The mandate would normally begin to take effect when the health care plan reached its renewal date. In the archdiocese’s case, that is July 1.

Joseph J. Sweeney Jr., secretary for Catholic Human Services and head of Catholic Charities in the archdiocese, stated in the court filing that four options are open to the archdiocese, all of which he called “intolerable:”

— “Sponsor a group health plan that provides coverage for contraceptive services” (in violation of church teaching).

— “Sponsor a group health plan that excludes coverage for contraceptive services but subjects the archdiocese affiliates (the agencies of Catholic Charities) to onerous fines.”

— “Expel the archdiocese affiliates from the (archdiocese’s health) plan.”

— “Do not sponsor a group health plan at all.”

Sweeney suggested the latter point would be inconsistent with Catholic teaching on the right of basic health care for its employees.

“None of these options is morally acceptable to the archdiocese,” he said, “and each substantially burdens its religious exercise.”

The U.S. Catholic bishops have for many years supported health care reform so that health benefits might be extended to all Americans. But the bishops also have vigorously opposed the HHS mandate on the grounds that it restricts religious freedom.

With its lawsuit, the archdiocese becomes the 50th nonprofit organization, including 17 individual dioceses and archdioceses,  to file suit seeking an injunction on the regulations, according to the Becket Fund for Religious Liberty, which was not involved in the suit’s filing.

 

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U.S. bishops’ president asks Obama for exemption from fines over ACA compliance

January 2nd, 2014 Posted in Featured, National News Tags: ,

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WASHINGTON — The president of the U.S. Conference of Catholic Bishops asked President Barack Obama to exempt religious institutions from fines related to health insurance requirements while legal challenges work their way through the courts.

Archbishop Joseph E. Kurtz of Louisville, Ky., is president of the U.S. bishops’ conference. (CNS file)

“The administration’s flexibility in implementing the (Affordable Care Act) has not yet reached those who want only to exercise what has rightly been called our ‘first freedom’ under the Constitution,” wrote Archbishop Joseph E. Kurtz of Louisville, Ky.

In a Dec. 31 letter, he asked Obama to extend the same kind of temporary exemption from penalties for noncompliance with the ACA that the administration has allowed for small employers and individuals whose current insurance plans will be canceled.

The letter described those allowances as “actions to advance the ACA’s goal of maximizing health coverage, while minimizing hardships to Americans as the act is implemented.”

Archbishop Kurtz said a whole category of Americans “has been left out in the cold: those who, due to moral and religious conviction, cannot in good conscience comply with the (Health and Human Services) regulation requiring coverage of sterilization and contraceptives.

“This mandate includes drugs and devices that can interfere with the survival of a human being in the earliest stage of development, burdening religious convictions on abortion as well as contraception,” the letter said. It noted that at least 90 lawsuits representing almost 300 plaintiffs have been filed to challenge the mandate. The Supreme Court has agreed to hear two of the cases, and several lower courts have found merit in the claims and granted at least temporary relief to the institutions and businesses. Other courts have yet to take up the cases. Still others have ruled the employers must comply.

Archbishop Kurtz asked the president to consider that, under other actions by the administration, no employers will be required to offer a health plan at all, and that employers face no penalty in the coming year for canceling coverage.

However, he added, “an employer who chooses, out of charity and good will, to provide and fully subsidize an excellent health plan for employees, but excludes sterilization or any contraceptive drug or device, faces crippling fines of up to $100 a day or $36,500 a year per employee. In effect, the government seems to be telling employees that they are better off with no employer health plan at all than with a plan that does not cover contraceptives. This is hard to reconcile with an act whose purpose is to bring us closer to universal coverage.”

The letter said the result is “a regulation that harshly and disproportionately penalizes those seeking to offer life-affirming health coverage in accord with the teachings of their faith.”

The archbishop added that he realizes the legal issues will ultimately be settled by the Supreme Court.

“In the meantime, however, many religious employers have not obtained the temporary relief they need in time to avoid being subjected to the HHS mandate beginning Jan. 1,” he wrote. “I urge you, therefore, to consider offering temporary relief from this mandate, as you have for so many other individuals and groups facing other requirements under the ACA.”

 

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Courts provide Catholic groups last-minute relief from Affordable Care Act’s birth control mandate

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WEST PALM BEACH, Fla. — In the midst of their New Year’s Eve celebration with low-income elderly residents, the Baltimore-based Little Sisters of the Poor learned that the Supreme Court issued an injunction temporarily protecting them from the Affordable Care Act’s contraceptive mandate.

U.S. Supreme Court Justice Sonia Sotomayor (CNS file)

The order by Justice Sonia Sotomayor, issued within hours of the mandate taking effect at midnight Jan. 1, applies to the Colorado-based Little Sisters of the Poor and their co-plaintiffs, Christian Brothers Services and Christian Brothers Employee Benefits Trust, in a lawsuit against the federal government.

The same evening, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued an emergency stay for Catholic organizations in a lawsuit filed by the Archdiocese of Washington, including The Catholic University of America, Archbishop Carroll High School in Washington; Don Bosco Cristo Rey High School in Takoma Park, Md.; and Mary of Nazareth Roman Catholic Elementary School in Darnestown, Md.

The 2-1 ruling in the Circuit Court included a comment from Judge David S. Tatel explaining why he voted to deny the injunction.

“Because I believe that appellants are unlikely to prevail on their claim that the challenged provision imposes a ‘substantial burden’ under the Religious Freedom Restoration Act, I would deny their application for an injunction pending appeal,” Tatel said, according to the Associated Press.

The Archdiocese of Washington issued a statement saying the stay vindicates “the pledge of the U.S. Catholic bishops to stand in resolute defense of the first and most sacred freedom, religious liberty.”

Sotomayor’s order came in her capacity as the justice assigned to hear emergency applications from the 10th U.S. Circuit Court of Appeals, which includes Denver. Her two-sentence order also instructed the federal government to file its response by 10 a.m. Jan. 3.

The injunction means the Little Sisters and the Christian Brothers will, for now, not be required to provide contraceptives, sterilizations and drugs and devices that cause abortions as part of their employee health insurance coverage.

Sotomayor’s order came as faith-affiliated groups around the nation rushed to federal courts to halt the provision. Several efforts were successful in obtaining temporary injunctions in the last days of 2013.

Also Dec. 31, the 6th U.S. Circuit Court of Appeals in Cincinnati reversed a decision by the Nashville District Court. The HHS mandate now may not be enforced while a lawsuit by the Diocese of Nashville and others works its way through the legal process. The plaintiffs there include Catholic Charities of Tennessee; Camp Marymount; Mary, Queen of Angels; St. Mary Villa; the Dominican Sisters of St. Cecilia; and Aquinas College.

Sister Constance Veit, communications director for the Little Sisters of the Poor, told Catholic News Service in a phone interview that the call from their attorney about Sotomayor’s order came just as the sisters were finishing a party with residents at their Baltimore base. The sisters operate 29 homes for the elderly around the country.

“It was surprising that we heard anything because we knew Justice Sotomayor was in New York City for the celebration, and we are grateful for the move in the right direction,” she told CNS. Sotomayor led the countdown to midnight as the crystal ball was dropped in Times Square.

In general, employers who provide health insurance to workers are required as of Jan. 1 to comply with the mandate that those policies include various types of contraceptives, including sterilization and abortifacients. The penalty for noncompliance is potentially thousands of dollars daily in fines. Although the Obama administration has made some allowances for exemptions for religious institutions, when final rules were issued in June, some Catholic employers said the exception still did not address their moral objections.

The sisters said they hope and pray for a favorable outcome so they can continue to serve the elderly of all faiths.

“If we were subject to the fines, it would impact all our homes around the country,” Sister Veit said. “We have 13,000 residents.”

Prior to the order, preliminary injunctions had been awarded in 18 of 20 similar cases, according the Washington-based Becket Fund, which represents many organizations suing over the mandate and maintains data about the cases on its website.

Mark Rienzi, senior counsel for the Becket Fund, told CNS it makes no sense for the Little Sisters to be fined for noncompliance before the lawsuit can even be decided.

“For the most part, the religious nonprofits are winning their cases, and the courts have said the governments are wrong here and that people have a right to exercise their religion,” Rienzi told CNS shortly before Sotomayor’s order. “Some, unfortunately, didn’t get preliminary injunctions and therefore face an imminent choice of either violating their religions or facing enormous fines.”

There are 91 lawsuits challenging the HHS mandate, according to the Becket Fund. Rienzi added that until the Supreme Court provides a clear answer to the legal challenges there will be a patchwork of court decisions in which some groups win and others face massive fines that may force some to close.

In Nashville, Rick Musacchio, diocesan director of communications, told CNS that its lawsuit is “not about access to contraception, it is about making Catholic entities facilitate and provide those services even though we find them morally objectionable.”

“We think the government mandates unfairly and unconstitutionally drive a wedge between the Catholic faith and the works we do through these affiliated entities,” he said, explaining that the mandate penalizes organizations for refusing to participate in providing morally objectionable products and services that are readily available anywhere.

“We still know that there is a long road ahead, but we are delighted about this outcome,” said Sister Sister Mary Sarah Galbraith, president of Aquinas College in Nashville.

Elsewhere, the Fort Wayne, Ind.-based U.S. District Court entered a preliminary injunction temporarily barring enforcement of the contraceptive mandate against the Diocese of Fort Wayne-South Bend.

The suit included the diocesan Catholic Charities, St. Anne Home and Retirement Community, Franciscan Alliance, Specialized Physicians of Illinois, the University of St. Francis and Our Sunday Visitor.

The Dec. 27 order by Judge Jon DeGuilio focused only on the request for an injunction against enforcement while the lawsuit proceeds.

“It is small first step, a touchdown in the first quarter, but there is still a lot of game to be played; this is not over by any means,” Sean McBride, diocesan spokesman, told CNS.

“Clearly this is an affirmation for religious freedoms, of the First Amendment, and an opportunity for us to operate on a daily basis without violating our deeply held religious beliefs,” McBride added.

The Supreme Court will hear, probably in March, two cases by for-profit employers that are challenging the contraceptive mandate. Challenges by entities similar to the religious orders are working their way to the high court.

 

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U.S. Supreme Court to hear two challenges to the Affordable Care Act – Updated

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WASHINGTON — The U.S. Supreme Court agreed Nov. 26 to take up two cases that challenge provisions of the Affordable Care Act requiring employers to provide contraceptive coverage on behalf of for-profit companies whose owners object to the mandate for religious reasons.

On Dec. 2, the court announced it had declined to hear the appeal of Liberty University of the 4th U.S. Circuit Court of Appeals ruling that the Christian university must adhere to the health care law’s employer mandate. When the Supreme Court ruled on the constitutionality of parts of the health care law in 2012, it didn’t address the employer mandate to provide coverage.

Probably in March, the court will take up the cases of Hobby Lobby, an Oklahoma-based, family-run arts-and-crafts chain, and Conestoga Wood Specialties, a Pennsylvania family-run company that makes cabinets.

The cases will be combined for the arguments. A decision is likely by late June.

Archbishop William E. Lori of Baltimore, chairman of the U.S. Conference of Catholic Bishops’ Ad Hoc Committee for Religious Liberty, was pleased with the court’s decision to take up the cases.

In a Nov. 26 statement he said the review “highlights the importance of this conflict between the federal government and people seeking to practice their faith in daily life.”

“We pray that the Supreme Court will find that the Constitution and the Religious Freedom Restoration Act protect everyone’s right to religious freedom. We are encouraged by the advances in the lower federal courts so far in cases involving family-owned companies as well as nonprofit religious organizations.”

In Sebelius v. Hobby Lobby Stores, the Green family won a ruling by the 10th U.S. Circuit Court of Appeals that said their Hobby Lobby chain of more than 500 stores and Mardel, a chain of 35 Christian bookstores, could proceed with seeking an injunction protecting the companies from meeting parts of the contraceptive mandate issued by the Department of Health and Human Services as part of the health care law.

Both the Justice Department and the Greens asked the Supreme Court to review the case.

The government requires most employers’ health plans to include free coverage of contraceptives, sterilizations and some abortion-inducing drugs.

The Greens say they object to that part of the Affordable Care Act’s employer mandate requiring they provide emergency contraceptive coverage, such as the morning-after pill or Plan B, saying that violates their religious freedom. The family has no moral objection to covering “preventive contraceptives” and will continue to cover those for employees, they have said.

The court agreeing to hear their case is “a major step for the Greens and their family businesses in an important fight for Americans’ religious liberty,” said Kyle Duncan, general counsel of the Becket Fund for Religious Liberty and lead lawyer for Hobby Lobby.

“We are hopeful that the Supreme Court will clarify once and for all that religious freedom in our country should be protected for family business owners like the Greens,” he said in a statement.

In a statement on the Hobby Lobby case issued by the press secretary’s office, the White House said it doesn’t comment on specifics of any case pending before the high court, but “as a general matter” it said the HHS mandate is designed to “ensure that health care decisions are made between a woman and her doctor.”

President Barack Obama “believes that no one, including the government or for-profit corporations, should be able to dictate those decisions to women, it said. The administration said it has already taken steps to “to ensure no church or similar religious institution” is forced to provide contraception coverage and allow women, not “corporate CEOS,” to make their own health decisions.

The second case, Conestoga Wood Specialties v. Sebelius, is an appeal by the Hahn family, the Mennonite owners, of a 3rd U.S. Circuit Court of Appeals ruling that they had to comply with the contraceptive coverage requirement. The circuit court ruled that as a for-profit, secular corporation, Conestoga Wood and its owners are not protected by the Free Exercise clause of the First Amendment.

In its petition for the Supreme Court to review its case, Conestoga Wood argued that the 3rd Circuit’s decision conflicts with rulings by other circuit courts that recognized religious rights of for-profit corporations.

The 1993 law, known as RFRA, says that 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 legal question raised in the case is whether RFRA protects a for-profit company from having to provide a benefit to which employees are entitled under federal law but to which the owners have religious objections.

The companies also raised the Free Exercise clause as a defense in arguing the mandate infringes on the employers’ right to be free from government interference with their religious beliefs. The argument cites the Supreme Court’s ruling in Citizens United that found a corporate free speech right to participate in the political process through campaign contributions.

The HHS mandate includes an exemption for some religious employers that fit its criteria and has an accommodation for others allowing some employers to use a third-party to provide the contraceptive coverage they find objectionable, but Catholic entities that have brought the lawsuits say the accommodation still does not solve their problem over being involved in providing coverage they reject for moral reasons.

The mandate does not include a conscience clause for employers who object to such coverage on moral grounds.

Neither of the Supreme Court’s orders lists from the Nov. 26 conference made reference to a fourth employer challenge of the health care law, Autocam v. Sebelius. The case was on the list for review at the same conference as the Hobby Lobby, Conestoga Wood and Liberty University appeals.

Cases the court accepted were announced Nov. 26. Those it denied were announced Dec. 2. Sometimes the court will hold a petition until other cases that deal with the same legal issues are decided.

 

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