- The Washington Times - Wednesday, May 20, 2015

A federal appeals court said Wednesday it will not reconsider a pro-life ministry’s plea for relief from Obamacare’s birth control mandate, dealing a second blow in as many days to religious nonprofits who say the administration is ignoring its strongly held beliefs and signals from the Supreme Court.

The U.S. Court of Appeals for the District of Columbia Circuit said a majority of its judges decided not to rehear the lawsuit from Priests for Life, after a three-judge panel rejected its claims in November.

“The dispute we resolved is legal, not religious,” Judge Nina Pillard, an Obama appointee, wrote for the court.

The ministry wanted the court to revisit the case “en banc,” meaning a fuller slate of judges would hear them out.

The tactic had worked for Hobby Lobby, a crafts store chain that won its en banc hearing before the 10th Circuit and then won over a majority of the Supreme Court in June last year.

In that blockbuster ruling, the justices held that the closely held corporation did not have to insure contraceptives that violated its owners’ religious or moral beliefs.

Religious nonprofits complain that for now, they are treated more stringently than for-profit entities, which must do nothing to opt out of coverage as the Department of Health and Human Services rewrites regulations in line with Hobby Lobby.

Instead, the religious nonprofits operate under an “accommodation” from the administration.

Religious nonprofits can either let their insurers or third-party administrators know that the institution objects to insuring the contraceptives, or they can write to HHS to opt out. From there, insurers or third-party administrators are responsible for managing and paying for coverage for affected employees.

Many nonprofits have rejected the accommodations, saying the opt-out forms still make them complicit in offering contraceptives to which they object, notably morning-after pills they equate with abortion.

The U.S. Court of Appeals for the 7th Circuit refused this week to grant a preliminary injunction that would shield Notre Dame University from the mandate, noting the Indiana university simply must notify the government that the “ball is now in the government’s court.”

The D.C. Circuit Court used similar reasoning.

“The regulation allows Plaintiffs to continue to do just what they did before the [Affordable Care Act]: notify their insurers of their sincere religious objection to contraception, and arrange for contraception to be excluded from the health insurance coverage they provide,” Judge Pillard wrote.

Two D.C. Circuit Court judges dissented with the ruling, saying Priests for Life deserved a second hearing in light of Hobby Lobby’s holding that the government should refrain from violating someone’s religious beliefs, when possible.

“That is precisely what has happened here,” said Circuit Court Judge Brett Kavanaugh, an appointee of President George W. Bush.

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

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