Indiana reflects contraception mandate disparity

Nonprofit organizations with religious affiliations across the country were required to begin providing contraceptive services to employees Wednesday under the Affordable Care Act.

Many did, despite ongoing objections based on tenets of their faiths.

But others caught a break, at least temporarily, as a last-minute legal fight over the controversial mandate generated a patchwork of federal court decisions late Tuesday.

The fates of two Northern Indiana schools — the University of Notre Dame and Grace College and Seminary — highlight the confusion and disparity that legal experts say is likely to land the matter before the Supreme Court of the United States.

Judges seated in U.S. District Court for the Northern District of Indiana recently issued opposing opinions in separate cases in which the two schools sought preliminary injunctions to block implementation of the mandate.

On Dec. 20, Philip P. Simon, the district’s chief judge, denied a request for an injunction sought by the University of Notre Dame.

Just a week later, on Dec. 27, district judge Jon E. Deguilio granted injunctions in two other cases, one brought by Winona Lake-based Grace College and Seminary and Biola University of La Mirada, Calif. and the other by the Catholic Diocese of Fort Wayne-South Bend, along with several other groups including Franciscan Alliance and University of St. Francis

That means Notre Dame was legally required as of Wednesday to provide the coverage, while Grace College and Seminary — as well as the Diocese of Fort Wayne-South Bend and Franciscan Alliance — were not.

Thousands of other religious groups, which had not filed federal lawsuits seeking injunctions, also were required to begin providing the coverage Wednesday.

Further clouding the long-term picture, and hinting that the matter could soon land before the Supreme Court, was a last-minute ruling Tuesday by Supreme Court Justice Sonia Sotomayor. The justice issued a temporary stay sought by a Catholic organization in Colorado that suspends the mandate until at least Friday.

In addition to the group protected temporarily by Sotomayor’s ruling, federal appeals courts late Tuesday also issued stays for Catholic diocese in Michigan, Tennessee and Washington, D.C.

The three legal challenges in Indiana are among about 90 similar appeals recently filed in federal courts across the United States. More than a dozen of those cases generated preliminary rulings, with decisions running about 2-to-1 in favor of religious groups seeking temporary stays that blocked implementation of the mandate.

Only Notre Dame, among groups across the United States which were denied stays and subsequently appealed, was forced to comply Wednesday.

Paul Browne, a Notre Dame spokesman, said the third-party administrator for the university’s insurance program is notifying employees that a contraceptive program is available while the university appeals judge Simon’s denial of an injunction.

“At the same time,” he added, “we are notifying our employees that this coverage could be withdrawn if we win the appeal.”

A decision on the university’s appeal is not expected until later this month at the earliest — unless the Supreme Court steps in sooner.

If the high court takes up the case, it will be the second case on its docket challenging the mandate based on religious grounds.

The Supreme Court in November accepted a challenge to the mandate raised by Hobby Lobby. The issue in that case is whether a private company can refuse to provide the coverage based on the owners’ religious beliefs.

The new cases also oppose the contraceptive requirement but from the perspective of nonprofit organizations with religious affiliations that oppose the law based on beliefs of their faiths.

“Until the Supreme Court rules, we don’t have a decision that applies to everybody,” said David Orentlicher, co-director of the Hall Center for Law and Health at the Indiana University Robert H. McKinney School of Law in Indianapolis.

The conflicting federal court opinions make it likely, he said, that the issue will be taken up by the Supreme Court.

The Affordable Care Act exempts churches from providing contraceptive services coverage, but nonprofits such as religious schools, medical facilities and charities only get an “accommodation,” Orentlicher explained. That means they do not have to provide the coverage option as a part of their employee group plans but must direct workers to a third-party provider that will make the coverage available.

Neither the university nor employee has to pay for the alternative coverage, Orentlicher said, with the government picking up the tab in most cases.

Still, for many groups with strong opposition to contraceptive measures, that crosses a moral line. Among such believers is the Franciscan Alliance, which was founded in Lafayette in 1875 and has grown to become one of the largest Catholic health care systems in the Midwest with 13 hospital campuses and 20,000 employees.

“The acts and participation required of Franciscan Alliance would be contrary to Catholic faith and would force Franciscan Alliance to violate its religious beliefs,” said spokeswoman Sister Aline Shultz.

Franciscan Alliance, which was a party to the federal challenge brought by the Diocese of Fort Wayne-South Bend, is among groups that received a last-minute, temporary stay.

A legal team headed by Ohio attorney Matthew Kairis filed both the Notre Dame challenge, which was denied, and the Diocese of Fort Wayne-South Bend challenge, which was approved.

“Two different judges, two different rulings,” Kairis said, “on the same set of facts.”

Orentlicher, the IU law professor, said the conflicting rulings highlight the complicated legal issues in the case.

“There are a lot of angles to litigate, and it becomes a balancing test,” he said. “And when you have a balancing test, it is a matter of judgment and cases came come out differently.”

A patchwork of conflicting court decisions, Orentlicher added, is the kind of legal tangle ripe for a definitive ruling from the Supreme Court.

The Associated Press contributed to this story.

Call Star reporter Tim Evans at (31) 444-6204. Follow him on Twitter: @starwatchtim