- The Washington Times - Thursday, September 17, 2015

A federal appeals court Thursday ruled in favor of faith-based nonprofits who fought Obamacare’s birth control rules, dealing an elusive victory to religious employers who now have a stronger hand in urging the Supreme Court to shield them from the administration’s “contraception mandate.”

In a pair of opinions, the U.S. Court of Appeals for the Eighth Circuit sided with religious universities and ministries that object to insuring contraceptives they equate with abortion and feel that opt-out routes provided by the Department of Health and Human Services keep them complicit in sin.

The rulings upheld a lower court’s finding and marked a significant break from other circuit rulings that said HHS’s efforts to accommodate the groups were sufficient.

Under HHS rules, religious employers who object to covering birth control must notify an insurer, plan administrator or the government in writing so that a third party can manage and pay for the coverage.

“If one equates the self-certification process with, say, that of obtaining a parade permit, then indeed the burden might well be considered light. But if one sincerely believes that completing [the opt-out form] or HHS Notice will result in conscience-violating consequences, what some might consider an otherwise neutral act is a burden too heavy to bear,” wrote Judge Roger L. Wollman, an appointee of President Ronald Reagan, joined by judges William D. Benton and Steven M. Colloton, both appointees of President George W. Bush.

The contraception mandate is an outgrowth of the Affordable Care Act of 2010 that requires employers to cover 20 types of FDA-approved drugs and services as part of their health plans or else pay hefty fines. Pitched as a boon for women’s health, the rules quickly spawned controversy, with dozens of religious nonprofits and devout business owners filing suit.

Many Catholic employers object to all forms of contraception, while evangelical groups and others say they’re only opposed to morning-after pills they equate with abortion.

Family owned for-profits were victorious before the Supreme Court last year, forcing HHS to draft an accommodation for them. The same rules that HHS drafted for religious nonprofits now apply to the closely held companies, although they must meet certain standards.

Plaintiffs on the nonprofit side are not satisfied though. They want the same blanket exemption from the mandate that houses of worship enjoy.

Several faith-based nonprofits have asked the justices to take up their case in the coming term.

With a circuit split in hand, they’ve got a much better shot at grabbing the court’s attention.

“The government keeps telling the Supreme Court ‘Move along, nothing important here’ in hopes that the court will ignore this crucial issue. But with today’s decisions, the court will have great reason to decide this issue in the next term,” said Lori Windham, senior counsel of the Becket Fund for Religious Liberty.

The Eighth Circuit cited the justices’ holding in the for-profit case, known as “Hobby Lobby,” that enforcing the mandate violated the Religious Freedom Restoration Act — a bipartisan 1993 law that says the government had to have a compelling interest in carrying out a law that substantially burdens a person’s religious beliefs, and must do so in the least restrictive way possible.

Unlike other circuits, Thursday’s panel said the HHS accommodation presented a substantial burden on faith-based nonprofits.

Citing the 2014 decision, the panel said “it is not our role to second-guess [the plaintiffs’] honest assessment of a ‘difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.’”

Brigitte Amiri, a senior staff attorney at the American Civil Liberties Union’s Reproductive Freedom Project, said she disagreed with the decision but acknowledged that it increases the likelihood that the justices will take up one of the faith group’s cases.

“Although we all have the right to our religious beliefs, those beliefs cannot be used to harm or discriminate against others,” she said. “Today’s decision is also an outlier — all of the other seven courts of appeals to consider the issue have found that the accommodation available for nonprofit organizations does not substantially burden the employers’ religious beliefs.”

Thursday’s ruling addressed lawsuits from Dordt College in Iowa, Heartland Christian College in Missouri and CNS International Ministries, Inc. (CNS), a Missouri nonprofit that helps people with substance abuse and behavioral problems.

The groups said intrauterine devices (IUDs) and emergency contraceptives covered by the mandate are the same as “abortion on demand.”

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