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Church leaders welcome leaked HHS draft lifting contraceptive mandate

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Catholic News Service

 

WASHINGTON — A leaked draft rule from the Department of Health and Human Services exempting religious groups from the contraceptive mandate of the Affordable Care Act was welcomed by church officials and attorneys representing the Little Sisters of the Poor, one of the groups that challenged the mandate at the U.S. Supreme Court.

Archbishop William E. Lori of Baltimore, chairman of the U.S. Bishops’ Ad Hoc Committee for Religious Liberty, said in a June 1 statement that the leaked draft has “yet to be formally issued and will require close study upon publication,” but it provides encouraging news.

“Relief like this is years overdue and would be most welcomed,” he said. Read more »

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Religious groups back Supreme Court’s idea on contraceptive coverage

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WASHINGTON — The religious nonprofits challenging their participation in the contraceptive mandate under the Affordable Care Act agreed with a U.S. Supreme Court proposal that such coverage be provided through an alternative health care plan without involving the religious employers in a legal brief filed with the court.

The brief, filed April 12 in the case of Zubik v. Burwell, said that as long as any alternative plan offering contraceptive health coverage is “truly independent” of the petitioners and their health insurance plans, then they would no longer object to the ACA’s goal of providing access to free birth control to women.

Sister Loraine Marie Maguire, mother provincial of the Denver-based Little Sisters of the Poor, speaks to the media outside the U.S. Supreme Court in Washington March 23 after attending oral arguments in the Zubik v. Burwell contraceptive mandate case. (CNS photo/Joshua Roberts, Reuters)

Sister Loraine Marie Maguire, mother provincial of the Denver-based Little Sisters of the Poor, speaks to the media outside the U.S. Supreme Court in Washington March 23 after attending oral arguments in the Zubik v. Burwell contraceptive mandate case. (CNS photo/Joshua Roberts, Reuters)

Any such an arrangement would require a separate insurance policy, a separate enrollment process, a separate insurance card and a separate payment source and be offered to employees through a separate communication, thus protecting the petitioners’ objections under the Religious Freedom Restoration Act to the contraceptive mandate, the brief said.

“We said yes to the court. There certainly are ways that people can get contraceptive coverage without using the religious organization providing health plans to do it,” Mark Rienzi, senior counsel with the Becket Fund for Religious Liberty, said during a press call April 13.

“The point of the case is not to say the government cannot get people to have contraceptives. … The claim has always been ‘I just can’t be involved. You can do whatever you want, just leave me out of it,’” he added.

“Our argument is if the government is willing to do something separate, that would be fine with us,” he told reporters.

Health insurance programs already exist in states across the country that offer separate contraceptive and abortion coverage under the ACA to meet employer concerns, Rienzi said.

Zubik v. Burwell is a consolidated case involving the Little Sisters of the Poor, Priests for Life, the Pennsylvania dioceses of Pittsburgh and Erie, the Archdiocese of Washington, and other Catholic and faith-based entities. The groups are challenging the ACA’s mandate that most religious and other employers must cover contraceptives, sterilization and abortifacients through employer-provided health insurance even if they are morally opposed to such coverage.

Briefs from the religious groups and the federal government were filed in response to a March 29 order from the eight Supreme Court justices outlining the procedures objecting religious employers must follow if they do not want to provide insurance coverage of contraceptives. It suggested that the groups could contract a third party to provide health insurance for their employees but they would need to inform the insurance company that they did not want the plan to include contraceptive coverage that they find objectionable.

The government’s brief argued that it wanted to keep the contraceptive mandate intact, but offered that it would go along with the court’s suggestion despite the possibility that it might not close the door on future legal challenges.

The court’s alternative, the government said, would work only in cases in which a religious employer uses an outside insurance company for health care coverage. The government also said that the religious groups had never indicated throughout years of litigation that they would accept what the justices ultimately suggested.

The brief reiterated that requiring a religious employer to send its objection to contraceptive coverage in writing is a “minimally intrusive process.”

However, it is that “work-around” of filing written paperwork with the government stating objections to such coverage that led to the lawsuits from the religious groups, which maintain that even complying with the so-called accommodation still involves them in providing coverage that violates their deeply held beliefs.

The court’s March 29 order said that insurance companies could “separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.”

With the plan, the objecting religious employers would not have to submit a form to the government or their insurance companies about the coverage.

Both parties have until April 20 to file responses to the briefs. The court is expected to rule on the case near the end of its term in June.

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U.S. bishops file brief with high court on behalf of Little Sisters of the Poor

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WASHINGTON — The general counsel for the U.S. Conference of Catholic Bishops filed an amicus brief with the U.S. Supreme Court in support of the Little Sisters of the Poor, who have asked the court for relief from being forced to comply with the federal contraceptive mandate.

Pope Francis greets Sister Marie Mathilde, 102, during his visit to the Little Sisters of the Poor residence in Washington  last September. (CNS/ L'Osservatore Romano)

Pope Francis greets Sister Marie Mathilde, 102, during his visit to the Little Sisters of the Poor residence in Washington last September. (CNS/ L’Osservatore Romano)

The brief was filed Jan. 8 in the Zubik v. Burwell case, which the court will hear this year. The case will determine whether the Little Sisters of the Poor and other ministries can be forced to comply with the contraceptive mandate of the U.S. Department of Health and Human Services.

Under the Affordable Care Act, all health insurance plans are required to provide coverage for birth control drugs and procedures. Churches themselves and other institutions that primarily employ and serve members of the churches are exempt.

Nonprofit religious entities such as church-run colleges and social service agencies are not exempt, but the federal Department of Health and Human Services created what it calls an “accommodation” under which such organizations morally opposed to the coverage may file a particular form or notify HHS that they will not provide it.

The contraceptive coverage is then provided to those organizations’ employees, but through third parties, and with no cost or further involvement to the employer. Entities that refuse to comply with the mandate are subject to significant fines.

The Little Sisters of the Poor and other organizations that sued say that the acts of filling out the form or notifying HHS are a substantial burden on their religious rights because the steps implicate them in the ultimate provision of contraceptives. The 10th U.S. Circuit Court of Appeals disagreed in a July 14 ruling, saying the sisters were not substantially burdened by procedures set out by the federal government by which they could avoid the requirement to provide contraceptive coverage in employee health insurance.

The USCCB brief argues that the contraceptive mandate not only damages religious freedom, but society as a whole.

“If the petitioners abide by their religious beliefs, they face the loss of the ability to sponsor health coverage for their employees and millions of dollars in fines, threatening financial ruin. No one benefits from such an outcome, not the organizations, their donors, their clients, or their employees,” the brief said.

The brief also highlighted the major contributions made by Catholic and other religious charities and social services by assisting millions of people every year. Seven other Catholic and non-Catholic organizations signed onto the USCCB brief: Association of Catholic Colleges and Universities; Catholic Relief Services; Family Research Council; Institutional Religious Freedom Alliance; The Cardinal Newman Society; Thomas More Society; and World Vision.

Other amicus briefs were filed by leaders from other faiths and members of Congress.

“We have great admiration for the Little Sisters who are standing up not just for themselves and the elderly poor they serve, but for the rights of all people of faith, including Jews,” said Rabbi Mitchell Rocklin in a statement. “Their courage is an example to all of us,” added the rabbi, a member of the executive committee of the Rabbinical Council of America.

Sister Loraine Marie Maguire, mother provincial of the Little Sisters, based in Denver, said the sisters are “overjoyed and deeply grateful for the diverse outpouring of support we have received from such a variety of people and groups.”

Sister Loraine Marie and Sister Constance Carolyn Veit, director of communications for the Little Sisters of the Poor, have been invited by House Speaker Paul D. Ryan, R-Wisconsin, to attend President Barack Obama’s State of the Union address Jan. 12.

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Supreme Court will hear appeals in Catholic cases against contraceptive mandate — updated

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WASHINGTON — The U.S. Supreme Court justices said Nov. 6 they will hear seven pending appeals in lawsuits brought by several Catholic and other faith-based entities against the Obama administration’s contraceptive mandate.

The court will hear appeals from groups in Colorado, Maryland, New Mexico, Oklahoma, Pennsylvania, Texas and the District of Columbia.

Members of the Little Sisters of the Poor attend the 2014 celebration of the third Fortnight for Freedom Mass at the Basilica of the National Shrine of the Assumption of the Blessed Virgin Mary in Baltimore. The Supreme Court agreed Nov. 6 to hear appeals filed by the Little Sisters and other groups against the Obama administration's contraceptive mandate. (CNS photo/Tom McCarthy Jr., Catholic Review)

Members of the Little Sisters of the Poor attend the 2014 celebration of the third Fortnight for Freedom Mass at the Basilica of the National Shrine of the Assumption of the Blessed Virgin Mary in Baltimore. The Supreme Court agreed Nov. 6 to hear appeals filed by the Little Sisters and other groups against the Obama administration’s contraceptive mandate. (CNS photo/Tom McCarthy Jr., Catholic Review)

Among the plaintiffs are the Little Sisters of the Poor, the Archdiocese of Washington, the Pittsburgh and Erie dioceses, Priests for Life, Southern Nazarene University and Texas Baptist University.

Under the federal Affordable Care Act, most employers, including religious ones, are required to cover employees’ artificial birth control, sterilization and abortifacients, even if employers are morally opposed to such coverage.

In all the cases to be argued before the high court in March, appellate courts in various jurisdictions sided with the Obama administration. The rulings said the religious entities’ freedom of religion was not burdened by having to comply with the mandate as they have argued, because the federal government has in place an accommodation for a third party to provide the contested coverage.

But the religious groups object to that notification, saying they still would be complicit in supporting practices they oppose. While their appeals worked their way to the high court, the government has not been able to force the groups to comply with the mandate or face daily fines for noncompliance.

The Archdiocese of Washington said it “is heartened to learn that the U.S. Supreme Court has agreed to review the D.C. Circuit’s flawed ruling in our challenge to the HHS (Health and Human Services) mandate, together with the other challenges pending before the court.”

“A particular concern for the archdiocese is the government’s treatment of Catholic educational and charitable ministries as if they are somehow less religious than houses of worship, and therefore less deserving of the right to operate in accord with the church’s teachings,” it said in a statement. “The archdiocese is hopeful that the court will vindicate our religious freedom, and the freedom of Catholic ministries also seeking to practice their faith freely, as guaranteed under the law.

Only those religious employers that meet narrow criteria set by the Obama administration are exempt from the mandate. Houses of worship are exempt, for example, but most Catholic and other religious employers are not.

Nonexempt religious employers can opt out of providing the coverage using what the administration calls an accommodation, or “work around.” They must notify Health and Human Services in writing of their religious objections. Then HHS or the Department of Labor government in turn tells insurers and third-party administrators that they must cover the services at no charge to employees.

In an afternoon telephone news conference, a spokesman for the Becket Fund, whose lawyers represent the Little Sisters of the Poor, said the Obama administration had “strenuously argued” that the high court not take the Little Sisters of the Poor case.

The government “argued hard and the court granted it anyway,” said Mark Rienzi, Becket’s senior counsel. “So the government will have to explain why they fought hard to make the Little Sisters cover contraceptives.”

Josh Earnest, White House press secretary, was quoted as saying the Obama administration is certain “the policy that we have in place balances the need for millions of Americans to have access to birth control while also protecting the right of religious freedom that is protected in our Constitution.”

Pittsburgh Bishop David A. Zubik in a statement said the Religious Freedom Restoration Act “goes to the very heart of our concerns.” The 1993 law was enacted “to respect the teachings of all religious bodies and the practices of individual believers,” he noted.

“The insurance mandate, which is one small provision of the Affordable Care Act, would require us to facilitate access to contraceptives, sterilization and abortifacients contrary to our teaching,” he said.

Bishop Lawrence T. Persico of Erie, Pennsylvania, in his statement said he was pleased his diocese and the others “will have our day in court.”

“Religious liberty protects the right of each of us to pursue the truth, to embrace it, and to shape our lives around it — all without government interference,” Bishop Persico said. “We are hopeful the court will uphold religious liberty, one of the essential pillars upon which our country has thrived for centuries.”

In its petition to the court, written by U.S. Solicitor General Donald B. Verilli Jr., the government said that houses of worship are different than church organizations. Churches themselves should be exempt because their employees are likely to share their employers’ religious beliefs, the government argued, while faith-based universities, charities and other organizations have more employees who do not share the beliefs of their employers and so the mandate should be enforced for those employers.

Robert Muise of the American Freedom Law Center, which represents the Priests for Life, called it “great news” that organization’s appeal will be heard along with the others.

On Nov. 9, Father Frank Pavone, national director of Priests for Life, announced a special prayer campaign for the Supreme Court to reverse the HHS mandate. The organization’s prayer website, PrayerCampaign.org, has a link to special prayers written for the campaign.

“Victory for us and the other six cases means victory for every believer,” Father Pavone said in a statement. “It is not the government that decides what does or does not contradict our faith and our conscience. It is the believer, in union with his or her church, who determines that. This is the essence of religious freedom.”

The cases the court accepted are: Zubik v. Burwell; Priests for Life v. Department of HHS; Roman Catholic Archbishop v. Burwell; Texas Baptist University v. Burwell; Little Sisters of the Poor v. Burwell; Southern Nazarene University v. Burwell; and Geneva College v. Burwell. The court is expected to refer to the cases collectively as Zubik v. Burwell. Sylvia Mathews Burwell is the secretary of the Department of Health and Human Services.

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Little Sisters take their case to highest court

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DENVER — In a July 23 filing with the U.S. Supreme Court, the Little Sisters of the Poor have asked the court for relief from being forced to comply with the federal contraceptive mandate or face heavy fines.

The sisters are being asked to choose between adhering to their Catholic faith — which prohibits them from providing contraceptives and continuing to pursue their religious mission of serving the elderly poor, according to Sister Loraine Marie Maguire, mother provincial of the order.

“As Little Sisters of the Poor we dedicate our lives to serving the neediest in society, with love and dignity,” she said in a statement.

“We perform this loving ministry because of our faith and simply cannot choose between our care for the elderly poor and our faith, and we shouldn’t have to,” Sister Maguire said. “We hope the Supreme Court will hear our case and ensure that people from diverse faiths can freely follow God’s calling in their lives.”

The latest action by the Denver-based Little Sisters follows a July 14 ruling by the 10th U.S. Circuit Court of Appeals that the religious order and other religious entities are not substantially burdened by procedures set out by the federal government by which they can avoid the requirement to provide contraceptive coverage in employee health insurance.

The circuit court ruling also affected Christian Brothers Services and Christian Brothers Employee Benefit Trust, the Catholic ministries through which the Little Sisters obtain their health coverage, and included challenges to the procedures filed by Southern Nazarene University, Oklahoma Wesleyan University, Oklahoma Baptist University, Mid-America Christian University, Truett-McConnell College and Reaching Souls, an Oklahoma-based a nonprofit corporation founded by a Southern Baptist minister that trains pastors and evangelists and provides care to orphans in Africa, India and Cuba.

Under the Affordable Care Act, all health insurance plans are required to provide coverage for birth control drugs and procedures. Churches themselves and other institutions that primarily employ and serve members of the churches are exempt.

Nonprofit religious entities such as church-run colleges and social service agencies are not exempt, but the federal Department of Health and Human Services created what it calls an “accommodation” under which such organizations morally opposed to the coverage may file a particular form or notify HHS that they will not provide it.

The contraceptive coverage is then provided to those organizations’ employees, but through third parties, and with no cost or further involvement to the employer. Entities that refuse to comply with the mandate are subject to significant fines.

The Little Sisters of the Poor and other organizations that sued say that the acts of filling out the form or notifying HHS are a substantial burden on their religious rights because the steps implicate them in the ultimate provision of contraceptives. The court disagreed.

“The Little Sisters consider it immoral to help the government distribute these drugs,” said Mark Rienzi, senior counsel of the Becket Fund for Religious Liberty and lead attorney for the religious order.

“But instead of simply exempting them, the government insists that it can take over their ministry’’s employee health care to distribute these drugs to their employees, while dismissing the Sisters’ moral objections as irrelevant,” he said in a statement July 23. “In America, judges and government bureaucrats have no authority to tell the Little Sisters what is moral or immoral. And the government can distribute its drugs without nuns — it has its own health care exchanges that can provide whatever it wants.”

 

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Court order temporarily stops contraceptive mandate against two dioceses

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PITTSBURGH — Officials in the Pittsburgh and Erie dioceses hailed a decision by U.S. Supreme Court Justice Samuel Alito to temporarily halt enforcement of the federal contraceptive mandate against Catholic Charities and other social service agencies in the dioceses.

The U.S. government was ordered to file a response by April 20.

“This stay is a welcome but interim step in pursuit of the religious freedom that our laws and Constitution have guaranteed to all Americans,” Bishop David A. Zubik of Pittsburgh said in a statement April 17. “We remain in prayer that justice will prevail and that Catholic Charities will be allowed to follow the teachings of the Catholic Church.”

Anne-Marie Welsh, spokeswoman for the Erie Diocese, said church officials there also were pleased with Alito’s order “responding to our emergency request to the Supreme Court to recall and stay the mandate.”

“We are grateful to the Jones Day law firm, which continues to pursue this on our behalf on a pro bono basis,” she added.

Pending receipt of the government’s response, Alito’s April 15 order affects a Feb. 11 ruling by a three-judge panel of the 3rd U.S. Circuit Court of Appeals that reversed a November 2014 decision by a lower court judge granting the Pittsburgh and Erie dioceses a temporary injunction against enforcement of the mandate.

Under the federal Affordable Care Act, most employers, including religious ones, are required to cover employees’ artificial birth control, sterilization and abortion-causing drugs, even if employers are morally opposed to such coverage.

The 3rd Circuit ruling would require Catholic institutions in the Erie and Pittsburgh dioceses to comply with the mandate or face massive fines.

The fines for refusing to follow a government mandate the Catholic Church “deems immoral” would jeopardize the future of Catholic Charities of Pittsburgh, Bishop Zubik said.

He added, “We remain in prayer that justice will prevail and that Catholic Charities will be allowed to follow the teachings of the Catholic Church.”

The panel’s ruling, written by Judge Marjorie Rendell, said the court found the mandate did not impose a substantial burden on the religious organizations as the Pittsburgh and Erie dioceses maintain.

In separate lawsuits, the Pittsburgh and Erie dioceses first filed a legal challenge to the constitutionality of the federal contraceptive mandate in May 2012.

Plaintiffs in the Erie lawsuit include the Diocese of Erie, the St. Martin Center and the Prince of Peace Center. Plaintiffs in the Pittsburgh lawsuit include the Diocese of Pittsburgh, Catholic Charities of Pittsburgh and the Catholic Cemeteries Association of the Diocese of Pittsburgh.

Their suits are among dozens filed by religious employers working their way through the courts.

Only those religious employers that meet narrow criteria set by the Obama administration are exempt from the mandate. Nonexempt religious employers can opt out of providing the coverage using what the administration calls a “work around.” They must notify Health and Human Services in writing of their religious objections. Then HHS or the Department of Labor government in turn tells insurers and third-party administrators that they must cover the services at no charge to employees.

But many religious groups object to the notification, saying they still would be complicit in supporting practices they oppose.

 

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Court hears arguments in Little Sisters of the Poor appeal

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DENVER — Speaking on the steps of a federal courthouse in Denver Dec. 8, the mother provincial of the Little Sisters of the Poor said the religious order cannot and “should not have to” choose between “our care for the elderly poor and our faith.”

Sister Loraine Marie Maguire said that is what the U.S. government is demanding by requiring the order to comply with the Affordable Care Act’s contraceptive mandate.

“It is a choice that violates our nation’s historic commitment to ensure that people from diverse faiths can freely follow God’s calling in their lives,” she said in a statement. “But the government forces us to either violate our conscience or take millions of dollars that we raise by begging for the care of the elderly poor and instead pay fines to the IRS.”

She made the comments after the 10th U.S. Circuit Court of Appeals heard oral arguments in an appeal filed by the Little Sisters of the Poor and in two related cases, Southern Nazarene University in Denver and Reaching Souls International, an Oklahoma nonprofit.

Mark Rienzi, senior counsel of the Becket Fund for Religious Liberty and lead attorney for the Little Sisters, delivered the oral arguments on behalf of the order. Adam C. Jed, an attorney with the U.S. Department of Justice, delivered the oral arguments on behalf of the U.S. Department of Health and Human Services, headed by Secretary Sylvia Mathews Burwell.

“Untold millions of people have managed to get contraceptives without the involvement of nuns,” Rienzi said in a statement afterward. “The idea that the most powerful government in the world cannot come up with a way to distribute these products without forcing the Little Sisters to participate is ridiculous.”

A Catholic News Service request for comment from HHS was not immediately returned.

The Little Sisters of the Poor first filed suit against the HHS mandate in September 2013 in U.S. District Court for the District of Colorado and lost.

The order appealed the decision to the 10th Circuit. Last December, the U.S. Supreme Court granted the religious order a temporary injunction on enforcement of the mandate and now the order seeks a permanent injunction.

The Little Sisters of the Poor, a Denver-based religious order that cares for the elderly poor in several facilities around the U.S., has been steadfast in its refusal to provide contraceptive coverage to its employees as required by the U.S. Department of Health and Human Services under the Affordable Health Care Act.

Refusal to comply with the mandate may force the Little Sisters to pay millions of dollars in fines to the federal government. The fine is set at $1,000 a day per enrollee in an employer’s health plan.

HHS requires nearly all employers to cover contraceptives, sterilizations and some abortion-inducing drugs for all employees in company health plans. It includes a narrow exemption for religious employers that fit certain criteria.

To opt out, nonexempt religious employers must inform the government of its religious objections to the mandated coverage. The government then informs a third party — such as the employer’s insurer or the administrator of its plan — that it must provide the coverage at no cost to the employee.

Nonexempt employers, like the Little Sisters of the Poor, had been required to fill out a self-certification form, known as EBSA Form 700, to direct a third party to provide the contested coverage.

Many religious employers that have sued over the mandate argue that even filling out Form 700 makes them complicit in providing coverage they find objectionable.

So last August, the Obama administration issued revised rules, which religious employers say they still find objectionable.

Under the new procedure, an eligible organization must advise HHS in writing of its religious objection to contraception coverage.

HHS itself will then notify the insurer for a health plan, or the Department of Labor will notify the third-party administrator for a self-insured plan, that the organization objects to providing contraception coverage. The insurer or third-party administrator must provide the coverage at no cost to the employee.

When the new rules were released, an HHS statement said they “balance our commitment to helping ensure women have continued access to coverage for preventative services important to their health, with the administration’s goal of respecting religious beliefs.”

In her statement, Sister Maguire said her order is “not seeking special privileges.”

“The government exempts huge corporations, small businesses, and other religious ministries from what they are imposing on us, we are simply asking to carry on our mission to serve the elderly poor as we have always done for 175 years,” she said.

 

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Support for religious exemption higher among Catholics

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Catholic News Service

WASHINGTON — Support for a religious exemption to the contraceptive mandate in the U.S. health reform plan is stronger among Catholics, especially those who attend church weekly, than among the general population, according to a new survey.

The poll released Feb. 14 by the Pew Forum on Religion & Public Life and the Pew Research Center for the People & the Press showed that 55 percent of Catholics who have heard about the controversy support giving religious institutions that object to the use of contraceptives an exemption from the regulation, while 39 percent oppose such an exemption.

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