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Supreme Court takes on religious freedom challenge to Obamacare again
The U.S. Supreme Court on Friday agreed to hear religious freedom challenges to the Affordable Care Act. It marks the second time the high court will address the ACA's contraception mandate. The appeal involves 7 cases filed by religious nonprofits. - photo by Matthew Brown
For the second time in less than two years, the U.S. Supreme Court has agreed to hear religious freedom challenges to the Affordable Care Act.

The court will take up seven separate cases involving faith-based nonprofits claiming that the government continues to violate their religious beliefs against artificial contraception, even with its attempt to accommodate their objections to providing birth control in employee health plans. The nonprofits want the same exemption granted to houses of worship and grandfathered healthcare plans of large corporations.

"The cases are something of a sequel to the courts narrow decision in 2014 that some closely held corporations are protected from having to provide contraceptive coverage that offends the owners religious beliefs," The Washington Post reported.

Similar to that landmark Hobby Lobby case, the justices on Friday agreed to focus on claims that the contraceptive mandate violates the Religious Freedom Restoration Act. The justices declined to hear claims brought in two of the seven appeals that the government discriminated against the petitioners by granting full exemptions to houses of worship, but not to religiously affiliated schools, hospitals, charities and other nonprofit organizations.

The most high-profile of the nonprofit cases is the appeal brought by the Little Sisters of the Poor, an order of Catholic nuns that runs homes for the elderly poor.

The Little Sisters should not have to fight their own government to get an exemption it has already given to thousands of other employers," said Mark Rienzi, senior counsel of the Becket Fund for Religious Liberty that is representing the Little Sisters. "Nor should the government be allowed to say that the Sisters arent religious enough to merit the exemption that churches and other religious ministries have received.

The hearing on the appeals will be heard in late March, according to SCOTUSblog, and will mark the fourth time in five years that justices will have taken up an Obamacare provision.

SCOTUSblog's Lyle Denniston wrote that the contraception mandate has generated more legal challenges than any other provision. Some 56 lawsuits have been filed by 140 nonprofits, according to the Becket Fund. Before the Hobby Lobby ruling, 49 lawsuits were filed by religious business owners.

In a comprehensive background to the contraception mandate appeals, Denniston explained that under the ACA's provision for women's preventative health care, employers with 50 or more employees must provide, through their health care plans, access to 20 forms of birth control drugs or devices, sterilization, screenings and counseling.

"The government has tried three times to fashion an accommodation for non-profit religious institutions that have faith-based objections to some or all contraceptives for their employees," Denniston wrote. "As of now, the accommodation requires the institution to notify the government of its objection, and that, the government argues, is enough to excuse it from any direct role in providing contraceptives to their female employees."

But the lawsuits filed by religious nonprofits say that notification still leaves them complicit in something they believe is a sin because the government still wants to use the objectors' employee health plans to provide the contraceptives. The fines levied for noncompliance created a substantial burden to religious exercise prohibited under RFRA, they argued.

Under RFRA, if there is a compelling interest, government regulations can restrict religious practice. But government must also prove the regulation is implemented in the least burdensome way.

Seven appellate courts had ruled that the Obama administration had met those tests under RFRA. But in September, the Eighth Circuit Court of Appeals ruled in favor of two religious nonprofits, "creating the type of circuit split that makes cases ripe for Supreme Court review," the Washington Times reported.

In that decision, Judge Roger L. Wollman wrote for a unanimous panel that the fines imposed for not complying with the mandate imposed a substantial burden under RFRA.

"(Wollman) assumed that the governments interest was compelling. But he said it could be accomplished in other ways," The New York Times reported. "For instance, he wrote, 'the government could pay for the distribution of contraceptives at community health centers, public clinics and hospitals with income-based support.'

In a teleconference Friday, Rienzi said the government could have avoided this by using another method to distribute contraceptives, including the insurance exchanges established under the ACA.

It is ridiculous for the federal government to claim, in this day and age, that it cant figure out how to distribute contraceptives without involving nuns and their health plans, he said.

The Post quoted White House press secretary Josh Earnest, noting that most of the federal appellate courts ruling the contraception cases have sided with the administration: We continue to have confidence in the power of the argument we made at the Circuit Court level that the policy we have in place appropriately balances the need of millions of American to have access to birth control, while also protecting the right of religious freedom that is protected in the Constitution.
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