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Circuit court rules contraception mandate doesn't violate religious freedom
Days after the government unveiled new rules for getting religious exemptions to a mandate to provide contraceptives under the Affordable Care Act, a federal district court dealt a blow to Christian groups seeking to avoid the rules altogether. - photo by Mark A. Kellner
The government's health care law mandating contraception coverage does not impinge on the religious liberty of an order of Roman Catholic nuns and Christian schools, a federal court ruled Tuesday.

The decision is the latest in a series of appellate court denials to several Christian colleges, universities and social-service providers that had sought complete exemption from the mandate.

The groups claimed the government's requirement of filing out a form or writing a letter stating their objection would make them "complicit" in what they considered an immoral act. The Roman Catholic Church's doctrine, for example, forbids all artificial means of contraception, while several Protestant traditions join the Catholics in objecting to medication they believe induces an abortion.

Tuesday's ruling by the 10th Circuit Court of Appeals in Denver comes days after the government unveiled new rules offering for-profit employers the same religious exemption it has provided for religiously affiliated nonprofits to opt out of providing contraceptives under the Affordable Care Act.

The ruling denies an injunction blocking enforcement of the mandate. It comes after 23 injunctions against the federal Department of Health and Human Services mandate have been granted to religious nonprofits by other courts, and four Supreme Court stays favoring the groups, including the Little Sisters of the Poor, an order of Roman Catholic nuns covered by the 10th Circuit's ruling.

Attorneys for the Little Sisters, as well as four Christian colleges in Oklahoma, among other plaintiffs, argued for the same exemption allowed houses of worship that aren't required to file paperwork to get out of complying with the mandate.

"We simply cannot choose between our care for the elderly poor and our faith," Sister Lorriane Marie Maguire, who heads the Little Sisters, said in a statement. "And we should not have to make that choice."

Similar rulings

Federal Circuit Judge Scott M. Matheson Jr., who wrote the majority opinion for the three-judge panel, wasn't convinced the government's accommodation would force religious objectors to choose between following their faith or the ACA mandate.

The government has "made opting out of the mandate at least as easy as obtaining a parade permit, filing a simple tax form, or registering to vote in other words, a routine, brief administrative task," he wrote. "Opting out ensures they will play no part in the provision of contraceptive coverage."

Matheson also said the government met its obligation under the Religious Freedom Restoration Act of providing the least restrictive means of achieving a compelling government interest.

The "accommodation scheme advances both the free exercise of religion and the governments legitimate interests in public health and gender equality," he wrote.

Matheson, a former U.S. Attorney for Utah, cited an interim rule proposed by the HHS allowing religious nonprofits to send the HHS a letter stating their objection. Previously, the groups had to complete and deliver a specific form to their insurance or benefits provider.

The 3-0 10th Circuit opinion asserts objecting groups "do not 'trigger' or otherwise cause contraceptive coverage because federal law, not the act of opting out, entitles plan participants and beneficiaries to coverage."

The 10th Circuit ruling is the latest in a series of losses for nonprofit groups seeking to distance themselves from providing prescription medications and services to which they have a religious objection, The New York Times (paywall) reported.

In each case, federal appellate judges offered similar reasoning to the 10th Circuit's ruling.

"All six appeals courts to consider challenges from nonprofit organizations have found that the accommodation poses no substantial burden on the nonprofits religion," the American Civil Liberties Union noted in a statement on Tuesday's decision.

Supreme Court's role

The reversals dealt a blow to the mandate's religious opponents. Advocates such as the Becket Fund for Religious Liberty, a public interest law firm that represented the Little Sisters, have often noted its intermediate victories of injunctions in many of the 56 cases filed by nonprofits against the contraceptive coverage mandate.

"Every time a religious plaintiff has gone to the Supreme Court for protection from the governments discriminatory mandate the Court has protected them," Becket's Lori Windham said, following a Supreme Court order in April temporarily protecting a group of Catholic organizations from complying with the mandate. "The federal bureaucracy has lots of options for distributing contraceptives they dont need to coerce nuns and priests to do it for them.

However, in a landmark decision in favor of Hobby Lobby last year, the justices suggested that the government's accommodation to religious nonprofits was an acceptable solution that could be extended to for-profit companies whose owners objected to providing contraceptive for religious reasons.

The 5-4 opinion in the Hobby Lobby case said the nonprofit exemption "constitutes an alternative that achieves all of the governments aims while providing greater respect for religious liberty."

Still, Becket Fund attorney Mark Rienzi said Tuesday the government could avoid all the litigation the mandate has generated by providing "contraceptives through its own existing (insurance) exchanges and programs."

Gregory Baylor, an attorney with the Alliance Defending Freedom who represented the Oklahoma Christian schools, said in a statement the decision imposed an "unjust law" on religious believers who contend participating in the opt-out violates their faith.

"The government should not force religious organizations to be involved in providing abortion pills to their employees or students," Baylor said. "The court is wrong to punish people of faith for making decisions consistent with that faith."

Despite the unanimity shown so far in the circuit courts, Becket Fund attorney Daniel Blomberg said, "we will keep on fighting for the Little Sisters, even if that means having to go all the way to the Supreme Court."
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