Sunday, November 18, 2012
A summary of the district court's decision granting an injunction to the plaintiff in Tyndale House Publishers, Inc. v. Sebelius is available here and the opinoin itself is available here. The case is significant in a number of respects.
One salient feature is that Tyndale is one of the handful of for-profit entities to challenge the contraception/abortifacient/sterilization mandate. The opinion also held that the entity had standing to challenge to the mandate on behalf of its owners and under the third-party standing doctrine.
The opinion is also significant in that the court declined to follow the decision in O'Brien v. HHS (available here) in part because Tyndale provided insurance to its employees directly through a self-insured plan whereas the plaintiff in O'Brien provided insurance to its employees through group health insurance policy separately administrered through an insurance company. The Tyndale court also found that the O'Brien court's statement that RFRA "is not a means to force one's religious practices on others" was "not relevant to whether a plaintiff's religious exercise is substantially burdened, but rather applies to the issue of whether the government's interest is sufficiently compelling to justify the substantial burdening of plaintiff's religious exercise." The government failed to show a compelling interest in any alleged third-party harm.
A third important feature of the opinion is that in assessing the government's alleged compelling interest in the mandate itself, the court did not simply defer to the government's broad interest in "promoting public health and ensuring that women have equal access to health care." Instead the court insisted that the government must show "that the application of the contraceptive coverage mandate to the plaintiffs furthers those compelling interests." That is, following the Supreme Court's opinion in Gonzales, v. O Centro Espirita Beneficente Uniao Do Vegetal, the court in Tyndale held that the analysis under RFRA must focus on "the particular claimant whose sincere exercise of religion is being substantially burdened." The government, however, failed to provide "any proof that mandatory insurance coverage for the specific contraceptives to which the plaintiffs object -- Plan B, ella, and intrauterine devices -- furthers the government's compelling interests, or that granting the plaintiff's requested exemption would meaningfully impede the governement's interests."
Obviously the opinion may be of help to some other for-profit entites challenging the mandate, especially those that are self-insured. In this regard it should also be of assistance to some religious institutions that do not fit within the law's narrow religious exemption. I wonder, however, whether the opinion's focus on the specific characteristics of Tyndale as a claimant and its objection to certain partiuclar drugs under the mandate may not be of help to Catholic institutions whose structures of ownership and employment practices are not as religiously pure as Tyndale's and who object to a broader array of drugs and procedures under the mandate.