- The Washington Times - Tuesday, July 14, 2015

A federal appeals court ruled against a group of nuns who objected to Obamacare’s birth-control mandate Tuesday, disappointing advocates who say the administration is pushing around a religious charity, and who viewed the case as their best remaining shot to force a showdown before the Supreme Court.

The U.S. Court of Appeals for the 10th Circuit in Denver said the Health and Human Services Department took steps to accommodate faith-based nonprofits like the Little Sisters of the Poor Home for the Aged, which felt complicit in insuring types of contraception they find sinful, including morning-after pills that Catholic groups equate with abortion.

“The departments have 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,” Circuit Judge Scott Matheson Jr., an Obama appointee, wrote.

The 10th circuit is the fifth appellate court to turn back the nonprofit challengers, citing the mechanism that allows the faith-based universities, hospitals and charities to notify either HHS or its insurer or third-party administrator that it doesn’t want any part in the coverage.

From there, the insurers and administrators would arrange and pay for the coverage.

Judge Matheson said the opt-out route “relieves plaintiffs of their obligation to provide, pay for, or facilitate contraceptive coverage, and does so without substantially burdening their religious exercise.”

The contraception mandate, a byproduct of the Affordable Care Act of 2010, requires employers to cover 20 types of FDA-approved drugs and services as part of their health plans.

Pitched as a boon for women’s health, the rules quickly spawned controversy, with dozens of religious nonprofits and devout business owners filing suit.

Family owned for-profits were victorious before the Supreme Court last year, forcing HHS to draft an accommodation for them.

Plaintiffs on the nonprofit side have rejected HHS’ attempts at compromise, saying they still feel complicit in sinful activity and should receive the type of blanket exemption that houses of worship enjoy.

“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,” the Little Sisters’ attorney, Mark Rienzi of the Becket Fund for Religious Liberty, said Tuesday.

The case before the 10th circuit involved the nuns’ group in Colorado and several Christian colleges from Oklahoma.

Other circuits have turned back Notre Dame University in Indiana, Wheaton College of Illinois, Baptist colleges in Texas and Priests for Life, an anti-abortion ministry.

The objecting nonprofits want the Supreme Court to take up their cause, even without the type of circuit split that helped for-profit entities get to the high court.

Last year, the justices said in a 5-4 decision that closely held corporations do not have to insure forms of birth control they object to on moral grounds.

They pointed to a 1993 religious-freedom law that says the government must find the least restrictive means possible to achieve its aims — in this case, providing cost-free birth control through employer-sponsored health plans.

Since then, the court has ordered circuits to reexamine the nonprofits’ complaints in line with the ruling, known as “Hobby Lobby.”

The appellate judges, however, have been quick to note that for-profit plaintiffs did not have a way to opt out.

“The difference between Hobby Lobby and this case is significant and frames the issue here … In the cases before us, the plaintiff religious nonprofit organizations can avail themselves of an accommodation that allows them to opt out of providing contraceptive coverage without penalty,” Judge Matheson wrote.

Seeking to comply with Hobby Lobby, the administration last week said closely held corporations can opt out by using the same accommodation it extended to nonprofits.

HHS said it relied on federal tax law to define a closely held corporation as one that is not publicly traded. It also said more than half of the company’s ownership should rest with five or fewer people, with all members of a single family being treated as an individual.

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