- The Washington Times - Monday, January 4, 2016

An elder-care charity run by nuns asked the Supreme Court on Monday to shield them from Obamacare’s birth control mandate, arguing that the government can provide their organizations’ female employees with contraceptives if it really wants to but shouldn’t force them to facilitate the coverage.

Attorneys for the Little Sisters of the Poor and three Christian colleges say the administration already has exempted a series of employers, undercutting its push to force religiously affiliated groups to formally opt out of the regulations so that a third party can step in and pay for the drugs and services.

“It is ridiculous for the federal government to claim, in this day and age, that it can’t figure out how to distribute contraceptives without involving nuns and their health plans,” said  Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty, which is representing the nuns.

To illustrate their point, the attorneys noted that the government has “invested billions of dollars” in Obamacare’s Web-based exchanges, subsidizing insurance for people who were unable to get it through an employer.

“To be clear, petitioners do not object to any government action that provides contraceptives to their employees,” their attorneys wrote in their main brief to the justices. “But they do object to being compelled to take government-prescribed actions to facilitate that coverage.”

The Supreme Court in November agreed to hear lawsuits from religious nonprofits who say the government didn’t go far enough when it offered to carve them out of the mandate, an outgrowth of the Affordable Care Act of 2010 that requires employers to cover 20 types of contraceptives approved by the Food and Drug Administration as part of their health care plans.

It will be the fourth time that a skirmish over all or part of Obamacare has made it to the Supreme Court.

The justices shielded certain corporations from the rules in 2014. But in March, the court will look beyond the mandate itself and decide whether the government’s olive branch to the objecting nonprofits still imposes an undue burden.

The nonprofits object to a government opt-out form designed to put up a firewall between the nonprofits and the mandated coverage, while still allowing their female workers to obtain the drugs and services.

Under that policy, faith-based universities and charities notify either their insurers or the federal government of their objections to providing contraception, and the insurers or plan administrators then step in and make sure employees can get contraception without the religious charity having to pay for it.

Faith-based groups say the waiver drafted by the Health and Human Services Department still makes them complicit in sinful activity, so they should receive a full exemption from the rules.

Attorneys for the sisters also noted that certain employers are already exempt from the mandate, including houses of worship and those with plans that were grandfathered and haven’t changed much since the law was enacted.

The faith-based nonprofits want to be carved out the mandate, too, with no strings attached.

After a series of high-level defeats, the 8th U.S. Circuit Court of Appeals sided with the nonprofits in September, creating the type of circuit split that makes cases ripe for Supreme Court review.

The mandate’s defenders say it fulfills a vital function and that the justices would set a dangerous precedent if they rule for the nonprofits.

Justice Department attorneys have compared the nonprofits to conscientious objectors who duck the draft and then want to block the government from naming someone else to fight.

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

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