DENVER — In another religious-liberty case that may have to be decided by the U.S. Supreme Court, a federal appeals court ruled July 14 that the Little Sisters of the Poor must comply with the federal government’s contraceptive mandate or pay massive IRS penalties.

The 10th Circuit Court of Appeals in Denver rejected the argument of the sisters, who operate the Mullen Home for the Aged in downtown Denver, which stated that arranging for their employees to obtain abortifacient contraceptives through a third-party administrator makes them complicit in the overall delivery scheme.

Circuit Judge Scott Matheson Jr., an appointee of President Barack Obama, wrote: “Although we recognize and respect the sincerity of plaintiffs’ beliefs and arguments, we conclude the accommodation scheme relieves plaintiffs of their obligations under the mandate and does not substantially burden their religious exercise under [the Religious Freedom Restoration Act] or infringe upon their First Amendment rights.”

The Little Sisters and their attorneys said they are closely reviewing the court’s decision and will decide soon whether they will appeal to the U.S. Supreme Court, where five religious nonprofit cases have already been appealed. The high court has received appeal petitions from Priests for Life, the Archdiocese of Washington, the Michigan Catholic Conference, the Diocese of Nashville, Tenn., and the Pennsylvania Dioceses of Erie and Pittsburgh, as well as East Texas Baptist University and Houston Baptist University.

“Everyone agrees the Supreme Court is ultimately going to have to settle this dispute. I think everybody expects that, by this time next year, the Supreme Court will take up one of the cases and decide this issue once and for all,” said Adele Keim, counsel with the Becket Fund for Religious Liberty.

The Becket Fund, a Washington-based public interest law firm specializing in religious-liberty cases, is representing the Little Sisters in their class-action federal lawsuit that includes almost 500 other Catholic nonprofit organizations that receive health benefits through the Christian Brothers Employee Benefit Trust and Christian Brothers Services.

Keim told the Register that she found it problematic that the 10th Circuit opined that the Little Sisters’ Catholic beliefs are not burdened by a federal rule that requires them to help facilitate access to all forms of government-approved birth control, including the abortifacient “morning-after pill” and sterilization.

“That is not a decision I want an unelected judge to be making,” Keim said.

 

‘A National Embarrassment’

In a prepared statement, Sister Loraine Marie Maguire, mother provincial of the Little Sisters of the Poor, said the sisters “simply cannot choose between our care for the elderly poor and our faith.”

Said Sister Loraine, “And we should not have to make that choice, because it violates our nation’s commitment to ensuring that people from diverse faiths can freely follow God’s calling in their lives. For over 175 years, we have served the neediest in society with love and dignity. All we ask is to be able to continue our religious vocation free from government intrusion.”

Mark Rienzi, senior counsel of the Becket Fund and lead attorney for the Little Sisters of the Poor, said he and the sisters are disappointed with the decision. Despite losing repeatedly at the Supreme Court, Rienzi said the federal government has continued “its unrelenting pursuit” of the Little Sisters.

Said Rienzi, “It is a national embarrassment that the world’s most powerful government insists that, instead of providing contraceptives through its own existing exchanges and programs, it must crush the Little Sisters’ faith and force them to participate. Untold millions of people have managed to get contraceptives without involving nuns, and there is no reason the government cannot run its programs without hijacking the Little Sisters and their health plan.”

Last December, the Denver-based 10th Circuit heard oral argument in this case, in which the sisters said that the government’s process of exempting them from the mandate still violated their rights under the First Amendment and the federal Religious Freedom Restoration Act.

 

The Administration’s Accommodation

The Affordable Care Act of 2010 — Obama’s signature legislation on health-care reform — authorized the U.S. Department of Health and Human Services (HHS) to mandate that employer-provided health-insurance plans cover contraceptives, abortifacient “morning-after pills” and sterilization, without deductibles or co-pays.

The Obama administration, in response to concerns raised by Catholic bishops and religious nonprofits, crafted an “accommodation” procedure to ostensibly distance the nonprofits from having to directly provide contraceptive coverage in employee health-insurance plans. The process requires the religious nonprofits to sign a federal document authorizing a third-party administrator to offer the birth-control coverage.

On July 10, the Obama administration finalized the rule to enable employees of religiously affiliated nonprofits and closely held corporations to obtain coverage for contraceptives. The rule requires religious nonprofits to provide written notification of their objections to HHS, which then notifies the insurer and requires the insurer to directly provide the coverage.

The rule applies to religious nonprofits such as Catholic hospitals and universities, as well as closely held corporations such as Hobby Lobby, which won a significant case against the contraceptive mandate last summer at the U.S. Supreme Court.

The 10th Circuit said last summer’s Hobby Lobby ruling did not apply in the Little Sisters’ case because the sisters were a nonprofit and therefore fell under the terms of the accommodation, which was not offered earlier to Hobby Lobby as a for-profit company.

However, the accommodation, the sisters say, still forces them to violate their consciences by indirectly assisting their employees to obtain morally illicit products. The Little Sisters of the Poor do not qualify for an outright religious exemption to the mandate because they do not qualify as a “house of worship.”

In January 2014, the Supreme Court granted an emergency injunction to the sisters to shield them from the mandate, which could force the order to pay $2.5 million a year in fines for not complying.

 

Court Defeats for Religious Nonprofits

Douglas Laycock, a leading authority on religious-freedom issues at the University of Virginia School of Law, told the Register that he does not believe the Supreme Court’s stays of judgment in religious nonprofit cases signal that the high court will reverse the 10th Circuit’s ruling.

Said Laycock, “Most of those stays modified an earlier version of the regulation that was somewhat more problematic.”

Laycock said six federal appellate courts have now rejected religious nonprofits’ claims that the accommodation violates their religious freedoms. Those courts have turned back challenges from the University of Notre Dame, Wheaton College, Catholic dioceses and other ministries.

Laycock noted that if the employer does not notify the federal government, then contraception will be part of the employer’s health plan.

“It is not the notice that causes the insurer to cover contraception,” Laycock said. “What the notice does is enable the government to tell the insurer to separate contraception from the employer’s plan and to provide it separately, with segregated funds and segregated communications. The notice triggers separation of coverage. The notice does not trigger coverage.”

Moreover, Laycock added, the religious nonprofits are not just seeking exemptions for themselves, but to also exempt their secular insurance company and to prevent that company from complying with its obligations under the Affordable Care Act.

“These are the principal reasons why six courts of appeals have found no RFRA violation,” Laycock said.

However, in October 2014 comments responding to the administration’s proposed accommodation for religious nonprofits and closely held corporations, Anthony Picarello and Michael Moses, the U.S. Conference of Catholic Bishops’ general counsel and associate general counsel, wrote that “the mandate continues to substantially burden the religious liberty of stakeholders with religious objections to the mandated coverage.

“Because it does not further a compelling government interest by the means least restrictive of religious exercise, the mandate continues to violate the Religious Freedom Restoration Act.”

Added Picarello and Moses, “Religious organizations that fall on the non-exempt side of the religious gerrymander include those which contribute most visibly to the common good through the provision of health, educational and social services.”

 

Other Means Available

Keim, the attorney from the Becket Fund, noted that the federal government has other means, through state health-care exchanges and women’s health-care clinics, to distribute contraceptives. But she said the government still wants to use religious nonprofits’ health-insurance plans to deliver those products.

Said Keim, “It’s not acceptable for the Little Sisters of the Poor, who set up their health plan, to then watch it being taken over as a vehicle to deliver something harmful to their employees. That is not something they can do.”

Register correspondent Brian Fraga writes from Fall River, Massachusetts.