July 14, 2015

NUNS FORCED TO PAY FOR OBAMACARE CONTRACEPTION: The U.S. Court of Appeals for the Tenth Circuit ruled today that the Little Sisters of the Poor must abide by Obamacare’s contraceptive mandate. You may recall that the Little Sisters took their religious liberty objection to the mandate all the way to the Supreme Court last summer–and won an injunction therefrom, pending disposition on the merits by the Tenth Circuit.  But when considering the merits, the Tenth Circuit nonetheless ruled against them:

In response to religious concerns, the Departments implementing the ACA— Health and Human Services (“HHS”), Labor, and Treasury—adopted a regulation that exempts religious employers—churches and their integrated auxiliaries—from covering contraceptives. When religious non-profit organizations complained about their omission from this exemption, the Departments adopted a regulation that allows them to opt out of providing, paying for, or facilitating contraceptive coverage. Under this regulation, a religious non-profit organization can opt out by delivering a form to their group health plan’s health insurance issuer or third-party administrator (“TPA”) or by sending a notification to HHS.

The Plaintiffs in the cases before us are religious non-profit organizations. They contend that complying with the Mandate or the accommodation scheme imposes a substantial burden on their religious exercise. The Plaintiffs argue the Mandate and the accommodation scheme violate the Religious Freedom Restoration Act (“RFRA”) and the Religion and Speech Clauses of the First Amendment.

Although we recognize and respect the sincerity of Plaintiffs’ beliefs and arguments, we conclude the accommodation scheme relieves Plaintiffs of their obligations under the Mandate and does not substantially burden their religious exercise under RFRA or infringe upon their First Amendment rights.

The Tenth Circuit’s contortions to reach this result are remarkable. The court seems to have no recognition of the fact that the Obama Administration’s regulatory “accommodation” is a sleight of hand, allowing the insurer/third party administrator to move the contraceptive coverage “off the books” and “pay” for it themselves. But of course burdening the insurer/administrator in this fashion is merely a shell game, and the cost of contraceptive coverage is ultimately borne by the employer and individual beneficiaries. The coverage is not magically free, no matter how hard the Obama Administration tries to make it “look” free via regulation.

So now we have Catholic nuns who religiously object to paying for certain types of contraception being forced to do so anyway (despite the smoke and mirrors), in contradiction to the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause of the First Amendment. The founders would be rolling over in their graves. But hey, what a bunch of dead, old white guys who wrote and ratified the Constitution thought or wanted isn’t relevant anymore anyway, right? We shall see. The Supreme Court may grant review to hear the Little Sisters case again.

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