- The Washington Times - Friday, November 14, 2014

A federal appeals court ruled Friday the Obama administration did not overly burden religious nonprofits by telling them to document their objections to an Obamacare mandate that requires employers to include birth control in their health plans.

The U.S. Court of Appeals for the District of Columbia Circuit said in a 3-0 opinion that all the objectors have to do is state what they believe in a letter or two-page form. It is likely easier to complete than most compliance measures that nonprofits face, the judges said.

“Religious nonprofits that opt out are excused from playing any role in the provision of contraceptive services, and they remain free to condemn contraception in the clearest terms,” wrote Circuit Judge Cornelia T.L. Pillard, an appointee of President Obama.

The contested mandate requires employers to insure an array of FDA-approved contraceptives in their plans, including morning-after pills that some religious groups equate with abortion.

For years, the Obama administration has struggled to deal with moral objections to the mandate. Dozens of corporations and faith-based nonprofits have sued over the rule, resulting in a Supreme Court decision known as “Hobby Lobby” and two administrative attempts to satisfy faith-based nonprofits.

First, the administration said nonprofits such as hospitals, universities and charities could submit a form to insurers or third-party administrators, who in turn would process and pay for the coverage without involving the employer.

Many nonprofits said the carve-out did not go far enough and still made them complicit in allowing someone to provide the contraceptives they objected to.

The administration tried again a few months ago. This time, the objecting nonprofits could note their objections to the Health and Human Services Department, which would then notify the relevant insurers and administrators.

Priests for Life, an anti-abortion ministry and lead plaintiff in the case before the D.C. Circuit, told the appeals court that the latest tweak did not go far enough, either, but the court was unswayed.

Father Frank Pavone, the group’s national director, said Friday they will not comply with the ruling.

“To ask a group of priests to cooperate in the government’s plan to expand access to birth control and abortion-inducing drugs is about as contrary to religious freedom as you can get,” he said.

Friday’s decision follows a Supreme Court ruling in June that allowed closely held corporations that object to certain forms of birth control on moral grounds to duck the Obamacare mandate. The 5-4 decision was driven by the court’s five conservative-leaning judges, who said the corporations are protected under the Religious Freedom Restoration Act of 1993.

Conversely, Judge Pillard wrote Friday the Obama administration’s regulations “do not impose a substantial burden” on the nonprofits under RFRA.

The judge was joined by two other judges nominated by Democratic presidents — Judith W. Rogers, a Clinton appointee, and Robert L. Wilkins, another Obama appointee.

A Washington Times analysis from August of the votes cast by dozens of federal judges in appellate courts since the 2010 health law was enacted shows that while Democratic and Republican appointees were evenly represented in the cases, they differed dramatically in how they ruled.

Democratic appointees ruled in favor of Obamacare more than 90 percent of the time, while Republican appointees ruled against it nearly 80 percent of the time.

• Tom Howell Jr. can be reached at thowell@washingtontimes.com.

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