Bench Memos

Eleventh Circuit Injunction Against Accommodation

An Eleventh Circuit panel, evidently having read footnote 9 of today’s Hobby Lobby ruling, has granted the Eternal Word Television Network an injunction, pending appeal, against the accommodation for religious nonprofits.

Better yet, one member of the panel, Judge William Pryor, has written a powerful opinion (pages 3-29 of the order) explaining why EWTN is likely to succeed on the merits of its appeal. Judge Pryor “part[s] ways with the Sixth and Seventh Circuits … because the decisions of those courts are wholly unpersuasive.” Among other things, he explains that the Obama administration requires that the objecting religious nonprofit make the self-certification and deliver it to the third-party administrator of its health-insurance plan because federal rules treat the self-certification “as a designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits” and because “without the form, the administrator has no legal authority to step into the shoes of the [employer] and provide contraceptive coverage to the employees.”

Citing footnote 9 of Hobby Lobby, Judge Pryor further explains that the accommodation flunks RFRA’s least-restrictive-means test because (on the arguendo assumption that the HHS mandate serves a compelling governmental interest) the government could require an objecting employer—as the Supreme Court did with the Little Sisters of the Poor—merely to provide a written notification of its objection to HHS, rather than providing the self-certification to the plan administrator. (The government could then pursue alternative means of providing the objected-to drugs and devices to the employees.)

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