- The Washington Times - Monday, April 6, 2015

Corporations with religious objections have already been granted relief from Obamacare’s contraceptive mandate, but religious colleges and charities are still fighting the administration in court, saying that, as of right now, they’re getting even worse treatment.

Two Baptist colleges take their case to a federal appeals court in Houston on Tuesday, and another appeals court in Denver is expected to rule any day now on an appeal from the Little Sisters of the Poor, a Catholic order of nuns that also objects to the mandate.

They argue that providing insurance coverage for contraceptives, including ones they say can cause abortions, violates their free exercise of religion.

Under federal health care reform’s existing rules, religious nonprofits must file objections to providing contraceptive coverage in writing to plan administrators or the Department of Health and Human Services, which then prompts the administrators to manage and pay for the coverage.

Many nonprofits say the notification, which functions as a legal trigger, still makes them complicit in sinful activity.

The Obama administration, however, has compared the religious organizations to conscientious objectors who would avoid the draft and then try to thwart the government from picking anyone else to serve.

The contraceptive mandate has grown complex after the Supreme Court last year decided the Hobby Lobby case, ruling that the administration ran afoul of the Religious Freedom Restoration Act (RFRA) when it required closely held for-profit corporations to provide contraceptive coverage even if the owners have religious objections.

In a 5-4 decision, the justices ruled the government needed to find a less-burdensome way to achieve its goal of getting women contraceptives at no additional cost.

The government is still trying to write new rules that meet the RFRA’s test, but for now it’s left for-profit corporations being treated better than religious nonprofits, the religious groups say.

“They don’t have to comply with the so-called accommodation, since the government had not implemented it yet,” said Lori Windham, senior counsel for the Becket Fund for Religious Liberty, which closely tracks the mandate cases and represents many of the plaintiffs.

The religious nonprofits are now beginning to make headway in the courts. The Supreme Court last month ordered a lower appeals court to rethink a ruling against the University of Notre Dame in light of Hobby Lobby.

Geneva College, a Christian institution in Beaver Falls, Penn., is seeking the same type of review after a loss before the 3rd U.S. Circuit Court of Appeals in Philadelphia, as is Priests for Life, a pro-life ministry that lost its case before a panel of the U.S. Court of the Appeals for the District of Columbia Circuit but wants a rehearing before a full slate of judges.

“So far, the appeals courts have relied heavily on the Notre Dame decision. Now that it is no longer good law, we expect to see some courts forging a different path,” Ms. Windham said.

If the appeals courts split over how to interpret Hobby Lobby and the nonprofits, it will be difficult for the Supreme Court to resist taking up the case.

“That’s exactly what we’re waiting for,” said the Rev. Frank Pavone, national director of Priests for Life.

Analysts, though, questioned whether the Supreme Court will accept the religious groups’ argument.

“I do not think that nonprofits can look to Hobby Lobby and say we should be exempt too, like for-profits, because for-profits are only temporarily exempt,” said Holly Lynch, a health and ethics expert at Harvard Law School. “The question is whether the accommodation that has been offered to nonprofits, and soon to certain for-profits, can withstand an RFRA challenge.”

But Ms. Windham said the high court is unlikely to water down its initial position.

“We believe ‘Hobby Lobby’ sent a very strong signal to the government that it needed to do a better job protecting free exercise,” she said.

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