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More Victory for Nonprofits By Diana Verm, Legal Counsel at The Becket Fund for Religious Liberty

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Ryan Colby 202-349-7219

By Diana Verm, Legal Counsel at The Becket Fund for Religious Liberty

The early results are in for nonprofit challenges to the HHS Mandate, and the winner so far is religious liberty.

Because the “safe harbor” for nonprofits expired on January 1st, religious objectors whose health care plans started on that date were in a rush to seek relief leading up to the New Year. They were faced with the prospect of violating their religious beliefs by taking part in a scheme to provide drugs and devices they consider morally reprehensible, or racking up millions of dollars in fines starting January 1.

There were twenty such cases before the courts nationwide that were decided on and before December 31st. Out of the twenty cases, nineteen resulted in injunctions. The most notable injunction came not from a district court, but from Justice Sonia Sotomayor of the Supreme Court. The Little Sisters of the Poor, an order of nuns dedicated to caring for the elderly poor, were denied relief in the Colorado district court and the Tenth Circuit. But at the eleventh hour—9:30 pm on New Year’s Eve, to be precise—Justice Sotomayor granted a temporary injunction to the Little Sisters and asked for further briefing from both sides.

What this means is that the non-profit cases are now on the Supreme Court’s radar with the for-profit Mandate cases, Hobby Lobby and Conestoga Wood. The Little Sisters and one other group of non-profit plaintiffs, led by the Roman Catholic Archbishop of Washington, have asked the Supreme Court to take the cases on their merits, even before the courts of appeals have ruled. This would make sense because the nonprofit cases and the for-profit cases both rely on the Religious Freedom Restoration Act, and raise many of the same legal questions. Moreover, the lower courts are split on the issue, with two circuits (the Seventh and Tenth) ruling against non-profits regarding emergency relief and two others (the D.C. and Sixth) ruling for them. If the Little Sisters joined Hobby Lobby at the Supreme Court, the Court would have a chance to resolve all the unanswered legal challenges to the HHS Mandate in one fell swoop. The Supreme Court has not yet responded to these requests, or to the briefing on the Little Sisters’ injunction.

In the meantime, most of the religious challengers remain free to practice their faith without interference, at least temporarily. The huge wave of strong pro-religious liberty decisions in the district courts bodes particularly well for the future. But the Little Sisters and many other religious nonprofits look to the Supreme Court to eventually vindicate their right to conscientious objection.