WASHINGTON (CNS) — The U.S. Supreme Court in orders issued May 23 remanded two Catholic entities’ legal challenges to the federal contraceptive mandate back to the lower courts.
The high court granted a petition for a writ of certiorari for two plaintiffs — the Catholic Health Care System, an umbrella for four Catholic institutions affiliated with the Archdiocese of New York, and the Michigan Catholic Conference.
With its order, the court vacated the early rulings against the two Catholic plaintiffs by, respectively, the 2nd U.S. Circuit Court of Appeals and 6th U.S. Court of Appeals.
The orders follow the court’s unanimous decision May 16 to send the Zubik v. Burwell case back to the lower courts. Zubik is actually a collection of Catholic and other faith-based entities’ challenge of the Affordable Care Act’s contraceptive requirement for employers.
The consolidated group of cases is named for Bishop David A. Zubik of Pittsburgh, one of the plaintiffs. “Burwell” in the case name is for Sylvia Mathews Burwell, secretary of the Department of Health and Human Services.
In its new orders, the court said that in both the Catholic Health Care System case and the Michigan Catholic Conference case, the “petitioners have made the government aware of their view that they meet ‘the requirements for exemption from the contraceptive coverage requirement on religious grounds.'”
“Nothing in the Zubik opinion, or in the opinions or orders of the courts below, ‘precludes the government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage’ going forward.”
But, the court also said, the “government may not impose taxes or penalties on petitioners for failure” to provide notice to the government stating their objection to the coverage.
The court heard oral arguments in Zubik v. Burwell March 23. Then six days later, it issued an unusual order seeking additional briefs from the plaintiffs and the federal government about how and if contraceptive insurance coverage could be obtained by employees through their insurance companies without directly involving religious employers who object to this coverage.
On April 12, the plaintiffs filed a brief with the court in which they agreed with the proposal that such coverage be provided through an alternative health care plan without involving the religious employers. The government also filed a brief, arguing that it wanted to keep the contraceptive mandate intact, but offered that it would go along with the court’s suggestion despite the possibility that it might not close the door on future legal challenges.
In its May 16 decision, the Supreme Court made clear that it was not expressing an opinion on the merits of the cases that are challenging aspects of the federal government’s health legislation and it also was not ruling on the issue of a potential violation of religious freedom.
Because of the “gravity of the dispute and the substantial clarification and refinement in the positions of the parties,” the court stated that religious employers and the government should be “afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans receive full and equal health coverage, including contraceptive coverage.”
The court stressed that this approach is “more suitable” than addressing the refined positions submitted by both sides and added that “although there may still be areas of disagreement between the parties on issues of implementation, the importance of those areas of potential concern is uncertain, as is the necessity of this court’s involvement at this point to resolve them.”
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Long ago I learned in moral theology class at St, Charles in Overbrook that that are two kinds of cooperation in evil: formal and material. The formal consists in an active participation in an evil act, like holding the ladder for a thief to climb into an upper story window. The material, by contrast, was cooperation that was not intended to further any evil act, but often became necessary for other reasons. The example then given for material cooperation was an employee of a drug store who, when asked by a customer, provided contraceptives to that customer. The employee had no means to frustrate the outcome (another person would provide the contraceptives) but would lose her job at the pharmacy for failing to serve customers who, being non-Catholic, had no qualms about using contraceptives. She or he could then with good conscience materially cooperate in an act deemed to be sinful without the sin of formal participation. I fail to see how this once traditional distinction cannot apply to the present dispute. Obviously the plaintiffs witness to their moral stance and do not formally participate in the act deemed immoral. But why cannot their participation be reckoned merely material; and the lawyers’ time and the large amounts of money spent for litigation be used to do good to the poor?
Why would someone who wants contraceptive and other coverage seek employment through a Catholic organization, full well knowing the Church’s stand on such? Just to make trouble? Seems like it to me. For these people who truly want this coverage, why can’t the government develop a plan that anyone can buy directly from the government, a stand-alone policy, which would provide coverage for those things that no religious organization should be made to cover.