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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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Little Sisters dedicate new chapel

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Dialog reporter

 

NEWARK — Mother Margaret Regina, superior of the Little Sisters of the Poor in Newark, said the founder of her religious order had it right when talking about caring for the elderly.

“Nothing is impossible if God is with us,” Mother Margaret Regina said, and it was appropriate at a Mass on March 29 to dedicate and bless the new chapel at the Jeanne Jugan Residence, the Little Sisters’ home in the diocese. Read more »

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Fortnight for Freedom: Martyrs’ relics linked to today’s threats to religious liberty

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Catholic News Service

BALTIMORE — Baltimore Archbishop William E. Lori linked urgent matters of “immigration, marriage and the church’s teaching on sexuality” to a pair of 16th-century martyrs during a June 21 Mass at the Basilica of the National Shrine of the Assumption of the Blessed Virgin Mary in Baltimore that began the fifth annual Fortnight for Freedom.

Baltimore Archbishop William E. Lori offers a history of the sacrifices made by Sts. Thomas More and John Fisher during his June 21 homily at the Fortnight for Freedom opening Mass at the Basilica of the National Shrine of the Assumption of the Blessed Virgin Mary in Baltimore. The relics of the two saints, on loan from Stonyhurst College in England, are on a national tour. (CNS photo/Kevin J. Parks, Catholic Review)

Baltimore Archbishop William E. Lori offers a history of the sacrifices made by Sts. Thomas More and John Fisher during his June 21 homily at the Fortnight for Freedom opening Mass at the Basilica of the National Shrine of the Assumption of the Blessed Virgin Mary in Baltimore. The relics of the two saints, on loan from Stonyhurst College in England, are on a national tour. (CNS photo/Kevin J. Parks, Catholic Review)

The theme of this year’s fortnight is “Witnesses to Freedom.” It features relics of St. Thomas More and St. John Fisher, an English layman and bishop, respectively, who were martyred in a 16-day span in 1535, when they refused to accept Parliament’s Act of Supremacy, which had declared that King Henry VIII was head of the church in England.

On display for veneration were St. John Fisher’s ring and a piece of bone of St. Thomas More. According to Jan Graffius, curator of Stonyhurst College in England, which holds the relics, it came from St. Thomas More’s skull, which was rescued by his daughter, Margaret, from a spike on London Bridge.

During a Mass that was televised nationally by the Eternal Word Television Network, Archbishop Lori’s homily connected Thomas More and John Fisher to an array of 21st century struggles, among them the Health and Human Services contraceptive mandate that the Little Sisters of the Poor continue to challenge in the nation’s highest courts.

“This night we recognize gratefully the courage of all who are resisting the mandate, especially the Little Sisters of the Poor,” the archbishop said. “They are vigorously defending their freedom and ours –- and they are doing so with a beauty and a joy, borne from the heart of the Gospel.”

Archbishop Lori, who is chairman of the Ad Hoc Committee on Religious Liberty of the U.S. Conference of Catholic Bishops, which sponsors the Fortnight for Freedom, also asked for prayers for the victims of June 12 mass shooting in Orlando, Florida, and their families.

“We may think that the days of the martyrs have ended,” Archbishop Lori said in his homily, “but as Pope Francis points out, there are more martyrs for the faith in our times than there were during the first centuries of the church.

“We remember with reverence and love those who died for their faith — Jews, Catholics and Protestants -— an ecumenism of blood, as Pope Francis says, during the reign of terror that was Nazism and Communism.

“This night,” he continued, “we draw close to the martyrs of the 21st century in Iraq, Iran, Syria and parts of Africa, those slain for their faith in plain sight of us all with no one to hold their persecutors accountable. Refugees are streaming from the Middle East just as Jews tried to escape from the horrors of Nazism, only to find that they are held suspect and they are unwanted.”

While religious liberty in the U.S. might not seem in such dire straits by comparison, vigilance is required nonetheless.

“We would like to think,” Archbishop Lori continued, “such things could never happen here. … Yet, there are ominous signs that protections for religious freedom have waned as bad laws, court decisions and policies pile up and as the prevailing culture more readily turns away from religious faith.

“Let us be clear that challenges to religious freedom in our nation pale in comparison to those faced by our brothers and sisters in many parts of the world; yet who is served when we fail to take seriously the new and emerging challenges to religious freedom that are before us?

“We may not be called upon to shed our blood,” he continued, “but we are called upon to defend our freedoms, not merely in the abstract, but as embedded in matters such as immigration, marriage and the church’s teaching on sexuality.”

Concelebrants of the Mass included Baltimore Auxiliary Bishop Denis J. Madden, Washington Auxiliary Bishop Martin D. Holley., and dozens of priests from the Archdiocese of Baltimore.

Other Catholic organizations represented included the Knights of Columbus, the Equestrian Order of the Holy Sepulchre of Jerusalem and the Order of Malta. The second reading was given by Dr. Marie-Alberte Boursiquot, president-elect of the Catholic Medical Association and a basilica parishioner.

June 22 is the feast day for both Sts. John Fisher and Thomas More.

The linking of current threats to religious freedom with the relics of the two saints carried particular resonance for one worshipper.

Jim Landers, a parishioner of St. Ignatius, Hickory, was keenly interested in the St. Thomas More relic. He is originally from Louisville, Kentucky, where his great-great-grandfather, Thomas Lawson Moore, was a U.S. senator whose lineage included Thomas More.

The spelling of the name was altered when his ancestors came to the U.S.

“This Mass, and everything it stands for, is extremely important to me,” Landers told the Catholic Review, Baltimore’s archdiocesan publication. “Beyond that, there’s the family connection. I can’t even describe that. It’s extremely exciting.”

His sentiments are compounded by the fact that Landers was raised Baptist and became a Catholic after attending Mass for years with his wife, Michelle.

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McMullen is managing editor of the Catholic Review, the news website and magazine of the Archdiocese of Baltimore.

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Open to suggestions — High court seeks details on how employee contraceptive coverage might not involve religious employers

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Catholic News Service

WASHINGTON — Less than a week after the Supreme Court heard oral arguments about the Affordable Care Act’s contraceptive requirement, the court released an order requesting that additional briefs be submitted showing if and how contraceptive insurance coverage could be obtained by employees through their insurance companies without directly involving the religious employers objecting to this coverage.

A religious sister displays a sign as she and others protest the Affordable Care Act's contraceptive mandate March 23  outside the U.S. Supreme Court in Washington. The court heard oral arguments in the Zubik v. Burwell mandate case. (CNS photo/Joshua Roberts, Reuters)

A religious sister displays a sign as she and others protest the Affordable Care Act’s contraceptive mandate March 23 outside the U.S. Supreme Court in Washington. The court heard oral arguments in the Zubik v. Burwell mandate case. (CNS photo/Joshua Roberts, Reuters)

The order was released the afternoon of March 29, just six days after the justices heard oral arguments in Zubik v. Burwell, a consolidated case involving the Little Sisters of the Poor, Priests for Life, the Pennsylvania dioceses of Pittsburgh and Erie, and the Archdiocese of Washington. The groups are challenging the Affordable Care Act’s mandate that most religious and other employers must cover contraceptives, sterilization and abortifacients through employer-provided health insurance.

Religious groups who did not fit the narrow exemption to the contraceptive mandate given to churches and religious groups argue that they cannot participate in providing contraceptives without violating their beliefs and that the Obama administration’s “work-around” allowing them to acknowledge their opposition and thereby trigger an arrangement for a third party to provide the coverage is still objectionable.

The court’s March 29 order specifically outlined the procedures that objecting religious employers must follow if they do not want to provide insurance coverage of contraceptives and went on to suggest 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 insurance companies, the order said, 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.

The Supreme Court’s order also pointed out that the parties involved in this case may have “other proposals along similar lines,” but they should avoid repeating what they mentioned in previous briefings.

The additional information should be submitted by April 12 and should be limited to 25 pages for the petitioners and April 20, and no more than 20 pages, for respondents, the order said.

The court’s request for more information came out the same day the court voted 4-4 in a case challenging the fees that labor unions collect from nonmembers.

Many have speculated that with Justice Antonin Scalia’s death in February, the current court of eight justices will result in a number of split decisions.

After the oral arguments in Zubik v. Burwell, there was plenty of speculation that the court seemed poised for a split decision in this case as well, which would uphold the lower courts’ decision and mean the contraceptive mandate for religious groups will be interpreted differently in different areas of the country.

 

Follow Zimmermann on Twitter: @carolmaczim.

 

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Crowd outside Supreme Court rallies against federal contraceptive mandate

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Catholic News Service

WASHINGTON — In the end, the women religious decided it would be good to sing after all.

That wasn’t on the agenda for the sunny 90-minute rally in front of the Supreme Court March 23 in support of the plaintiffs in Zubik v. Burwell. But it had a calming effect, so it seemed like the right thing to do.

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)

There were several spontaneous renditions of “Let There Be Peace on Earth,” “God Bless America” and “God Bless the USA” from the Little Sisters of the Poor and groups of Dominican and Carmelite sisters.

At the end of the rally, Mother Regina Marie Gorman of the Carmelite Sisters of Los Angeles, who delivered the closing prayer, decided, with a big smile, that it would be apt for all the Catholics to chant the Marian antiphon “Salve Regina,” traditionally sung after evening prayers.

It was a serene conclusion to an orderly rally punctuated with chants of “Let them serve!” as the court heard oral arguments in the case brought by several Catholic and other faith-based entities against the federal government’s requirement that most employers, including religious employers, cover contraceptives for their workers.

The Denver-based Little Sisters, who operate nursing homes for the elderly poor, and 36 other groups are contesting the Affordable Care Act’s contraceptive mandate. With the death of Justice Antonin Scalia, the case has an uncertain future with the possibility of a 4-4 court deadlock, which means the rulings of the circuit courts, all but one of which have gone against the plaintiffs, will be upheld.

The Department of Health and Human Services has offered an “accommodation,” also known as a “work-around,” that allows objecting employers to acknowledge their opposition to contraceptive coverage by notifying HHS in a letter. This allows a third party to provide the coverage. The Little Sisters and other plaintiffs object to that, calling it a burden on their free exercise of religion, because they are still involved in allowing coverage they find objectionable.

“Today the Little Sisters make their last stand,” said Mother Mary Assumpta Long of the Dominican Sisters of Mary in Ann Arbor, Michigan.

“Filling out a piece of paper is not the issue. Complicity is wrong and it is wrong in itself, and the government cannot make this otherwise.”

“The Supreme Court,” she continued, “is no the arbiter of sacred Scriptures.”

“Our request is not uniquely Catholic or religious. It’s American,” said Elise Italiano, executive director of communications for The Catholic University of America, another plaintiff.

On March 2, a rally of more than 3,000 participants surrounded and attempted to drown out a pro-life rally of about 200 during oral arguments on a Texas abortion law. This time, the proportions were reversed.

A competing rally organized by the National Women’s Law Center, the American Humanist Association and Catholics for Choice, among other groups, had many fewer participants than the several hundred who turned out in support of the Little Sisters and the other plaintiffs, including Oklahoma Wesleyan University, East Texas Baptist University, Southern Nazarene University and Geneva College, a Presbyterian institution, and the Archdiocese of Washington, the dioceses of Pittsburgh and Erie, Pennsylvania and Priests for Life.

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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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Court: Religious groups aren’t unduly burdened by procedures to opt out of providing birth control coverage — Updated

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DENVER — The Little Sisters of the Poor and other religious entities are not substantially burdened by procedures set out by the federal government by which they can avoid a requirement to provide contraceptive coverage in health insurance, the 10th U.S. Circuit Court of Appeals ruled July 14.

Members of the Little Sisters of the Poor attend the 2014 celebration of the third annual Fortnight for Freedom Mass at the Basilica of the National Shrine of the Assumption of the Blessed Virgin Mary in Baltimore. The 10th U.S. Circuit Court of Appeals ruled July 14 the Little Sisters and other religious entities are not substantially burdened by federal procedures that would enable them to avoid providing contraceptives in health insurance coverage. (CNS photo/Tom McCarthy Jr., Catholic Review)

Members of the Little Sisters of the Poor attend the 2014 celebration of the third annual Fortnight for Freedom Mass at the Basilica of the National Shrine of the Assumption of the Blessed Virgin Mary in Baltimore. The 10th U.S. Circuit Court of Appeals ruled July 14 the Little Sisters and other religious entities are not substantially burdened by federal procedures that would enable them to avoid providing contraceptives in health insurance coverage. (CNS photo/Tom McCarthy Jr., Catholic Review)

In a lengthy opinion that considered arguments raised by the organizations under First Amendment religious rights protections and under the Religious Freedom Restoration Act, the court said the groups are not substantially burdened by filing out a form or notifying Health and Human Services via email or a letter that because of their religious-based objections to the mandated coverage, they will not provide it.

The ruling is the latest in a string of circuit court decisions finding that nonprofit religious institutions may not be protected from complying with the procedures set out by HHS for being excused from what is known as a mandate to provide coverage for a variety of types of contraceptives in employee health insurance.

“The departments have made opting out of the mandate at least as easy as obtaining a parade permit, filing a simple tax form, or registering to vote — in other words, a routine, brief administrative task,” wrote Judge Scott M. Matheson Jr. He was joined by two other judges in parts of the ruling. However, Judge Bobby Baldock in a partial dissent from the majority’s decision, said he would rule that the religious exercise rights of self-insured employers are more substantially burdened than are those that have outside insurers. “Moreover, less restrictive means exist to achieve the government’s contraceptive coverage goals here,” he wrote.

Under the Affordable Care Act, all health insurance plans are required to provide coverage for birth control drugs and procedures. If providing such coverage is morally objectionable according to their faith, churches themselves and other institutions that primarily employ and serve members of the churches are exempt.

The 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.

In addition to the Little Sisters, who operate homes for the aged, the ruling affects 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 non-profit corporation founded by a Southern Baptist minister that trains pastors and evangelists and provides care to orphans in Africa, India and Cuba.

Matheson’s ruling took into account the Supreme Court’s June 2014 Hobby Lobby decision, which found that the owners of the for-profit chain of crafts stores had a legitimate claim that their religious beliefs are burdened by the mandate for contraceptive insurance.

On July 10, HHS issued a new set of rules in light of the Hobby Lobby decision, extending to closely held, for-profit companies the same accommodation it created for the nonprofits. The rules would apply to for-profit entities owned by five or fewer individuals which are not publicly traded. The HHS press release about the rules said that based on available information, that definition would include “all of the for-profit companies that have challenged the contraceptive-coverage requirement on religious grounds.”

Matheson said that unlike in the Hobby Lobby case, the federal government had provided a process of accommodating the plaintiffs’ religious objections to the requirement for contraceptive coverage.

The accommodation makes the situation unlike typical cases brought under RFRA, he said. In Hobby Lobby and other recent RFRA cases, “the government either required or prohibited acts of religious significance to the plaintiffs. In the cases before us, the government has freed plaintiffs from the responsibility to perform the act they consider religiously objectionable, namely, providing contraceptive coverage.

“Nonetheless, the plaintiffs argue an act they do not consider objectionable in itself, completing a form or writing to HHS, becomes objectionable because it either causes the provision of contraceptive coverage or renders them complicit in the provision of contraceptive coverage. Therefore, unlike the aforementioned cases, we are in the slightly different position of considering whether an otherwise unobjectionable act, understood in context, constitutes a substantial burden on plaintiffs’ religious exercise.” It does not, the court concluded.

Daniel Blombert, counsel at the Becket Fund, which represents the Little Sisters of the Poor, said in a statement that “we will keep on fighting for the Little Sisters, even if that means having to go all the way to the Supreme Court.”

The Becket Fund statement also included a comment attributed to Sister Loraine Marie Maguire, mother provincial of the order. It framed the ongoing legal battle as a choice “between our care for the elderly poor and our faith,” adding “we should not have to make that choice.”

The 10th Circuit was the fifth federal appeals court to decide that religious rights of faith-based institutions are not burdened by the process of filing the form or notifying HHS that due to religious objections an employer will not be providing coverage for contraceptives. The rulings said that the act of notifying the government is not what “triggers” access to birth control, as the Little Sisters and other plaintiffs have argued. The ACA legislation itself is what triggers someone being able to receive contraceptives, the courts said.

In addition to the 10th Circuit, the 3rd, 5th, 7th, and D.C. Circuits have ruled similarly, all in decisions issued after last summer’s Hobby Lobby ruling. Some of those cases are likely to reach the Supreme Court in the coming term, but it has not yet accepted one.

Legal challenges to the contraceptive mandate by for-profit and nonprofit employers have played out on separate tracks. For-profit cases like Hobby Lobby’s moved through the courts faster, as HHS several times reworked its rules for how nonprofits might seek to be taken out of the contraceptive mandate portion of the ACA.

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5th Circuit says HHS accommodation on mandate not a burden on religion

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Catholic News Service

WASHINGTON (CNS) — The religious rights of faith-based entities — including the dioceses of Fort Worth and Beaumont, Texas, and the University of Dallas — are not substantially burdened by the process to receive an accommodation from the federal government to avoid participating in a health care mandate for contraceptive coverage, the 5th U.S. Circuit Court of Appeals ruled June 22.       Read more »

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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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