We have been closely monitoring a case that had the potential to threaten one of CBA’s founding principles, the power of association. Americans for Prosperity v. Bonta dealt directly with the right to associate anonymously, a key feature of the CBA model.
From its beginning the CBA has protected the identity of its members so that they alone control whether to disclose their membership in the CBA. Some did so by agreeing to serve as named plaintiffs in CBA lawsuits and thereby help establish a preferred venue for those cases. Others announced their membership as a teaching opportunity as, for example, when the Diocese of Sioux Falls published its “Authentically Catholic” health plan made possible by its membership in the CBA and by its adoption of the CBA’s Genesis health plan. See 2021_HR-Lay-People-Benefits-Guide-REV-2-5-2021.pdf (sfcatholic.org). Others have reasonably chosen not to announce their CBA membership.
In both the CBA’s lawsuits against HHS, DOL, and Treasury regarding the CASC mandate and its lawsuit against HHS and the EEOC for their respective gender transition services mandates, the Department of Justice asked the Courts to order CBA to disclose the names of its members. We successfully opposed these requests by invoking NAACP v. Alabama, the 1958 Supreme Court case that reasoned: “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”
On July 1, 2021, the Supreme Court reaffirmed this principle in Americans for Prosperity v. Bonta, a case originally known as Americans for Prosperity v. Becerra. It held that the California Attorney General’s rule requiring tax exempt entities to disclose names and addresses of donors contributing $5,000 or more during any tax year violated First Amendment association rights. It reasoned that “disclosure requirements can chill association rights ‘[e]ven if there [is] no disclosure to the general public.’”
Thus, one of CBA’s founding principles has been re-affirmed by our highest court.
NEW DECISION ILLUSTRATES IMPORTANCE OF CBA’S GENDER TRANSITION INJUNCTION
Last week, the U.S. District Court in Maryland provided a dramatic example why CBA protections matter. In Hammons v. University of Maryland Medical System, the court found that University of Maryland St. Joseph Medical Center likely violated Section 1557 of the Affordable Care Act (“ACA”) by refusing to perform a hysterectomy on a woman transitioning her gender for moral reasons.
St. Joseph Hospital was “founded over a hundred years ago by the Sisters of St. Francis of Philadelphia and operated as a private Catholic hospital for most of its history.” It eventually became part of Catholic Health Initiatives. It more recently became part of the University of Maryland health system on the condition that it continue to follow the USCCB’s Ethical and Religious Directives for Catholic Health Care Services.
St. Joseph’s Hospital is now dangerously exposed to the full range of sanctions imposed by the ACA and HHS’s implementing regulation for violation of Section 1557. These include imprisonment of executives; massive financial penalties including loss of Medicare, Medicaid, and other federal funding; and disqualification from federal contracting. St. Joseph Hospital could also face liability under the False Claims Act, including a $11,000 civil penalty for each false claim and treble damages and compensatory damages and attorneys’ fees. Because of the permanent injunction CBA won for its members and future members in January, CBA present and future members are exempt from such sanctions.
L. Martin Nussbaum
General Counsel, Catholic Benefits Association