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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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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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Washington Letter: Religious freedom debates and laws have a roller coaster history

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Catholic News Service

WASHINGTON — It started with hallucinogenic peyote and a couple of guys in Oregon who were fired after they used it in a religious ritual.

Over the course of 25 years, the U.S. debate over religious rights moved from there to the current social and political uproar about Indiana’’s Religious Freedom Restoration Act and whether it would give legal cover to those who might discriminate on the basis of sexual orientation.

Within hours of Indiana Gov. Mike Pence signing a state version of the Religious Freedom Restoration Act March 26, critics slammed the legislation as going further than the federal version of the same law does and said it would enable individuals and businesses to claim a religious right to discriminate in ways not foreseen in other versions. Highly publicized protests and boycotts of Indiana and Indiana-based businesses were launched. Read more »

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Indiana bishops call for ‘mutual respect,’ dialogue on religious freedom bill

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Catholic News Service

INDIANPOLIS — Indiana’s Catholic bishops April 1 urged people to show mutual respect for one another and allow “the necessary dialogue” to take place to make sure no one in the state will face discrimination, “whether it is for their sexual orientation or for living their religious beliefs.”

Demonstrators rally at Monument Circle in Indianapolis March 28 to protest a religious freedom bill signed in to law by Indiana Gov. Mike Pence. More than 2,000 people gathered at the state Capitol to protest Indiana's Religious Freedom Restoration Act because they say it would promote discrimination against individuals based on sexual orientation. (CNS photo/Nate Chute, Reuters)

Demonstrators rally at Monument Circle in Indianapolis March 28 to protest a religious freedom bill signed in to law by Indiana Gov. Mike Pence. More than 2,000 people gathered at the state Capitol to protest Indiana’s Religious Freedom Restoration Act because they say it would promote discrimination against individuals based on sexual orientation. (CNS photo/Nate Chute, Reuters)

Remarking on the state’s Religious Freedom Restoration Act, signed into law March 26, they said it “appears to have divided the people of our state like few other issues in recent memory.”

Their statement came amid protests by gay rights groups and others who say that the new religious freedom law could be a vehicle of legal discrimination.

Republican Gov. Mike Pence said he stood behind the religious freedom bill passed by the Indiana General Assembly when he signed it into law, but has since asked state lawmakers to send him some clarifications to make “it clear that this law does not give businesses the right to deny services to anyone.”

“We want to make it clear that Indiana is open for business, we want to make it clear that Hoosier hospitality is not a slogan, it’s our way of life,” he said at a morning news conference March 31.

Pence attributed the firestorm over the measure to a combination of what he called “mischaracterization,” “misunderstanding” and “sloppy reporting.” As a result “Indiana has come under the harsh glare of criticism from around the country,” he said.

In their statement, the Catholic bishops reiterated the Catholic Church’s teaching that “every human being is created in the image of God,” that “every person deserves to be treated with dignity and respect” and that everyone has a right to life’s basic necessities.

“We believe that it is crucial that religious freedom be protected,” they said.

“We support efforts to uphold the God-given dignity of all the people of this state while safeguarding the rights of people of all faiths to practice their religion without undue burden from the government,” they said in conclusion.

At the signing ceremony, Pence said if he thought the religious freedom bill “legalized discrimination in any way in Indiana, I would have vetoed it. For more than 20 years, the federal Religious Freedom Restoration Act has never undermined our nation’s anti-discrimination laws, and it will not in Indiana.”

“Indiana’s law contains no reference to sexual orientation,” he said, adding that it “simply mirrors” the federal law, known as RFRA.

The 1993 law says that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest.” It does not apply to the states, so with Indiana, there are now 20 that have passed such legislation.

In a March 27 post on a blog for lawyers called IN Advance, Indiana trial lawyer Matt Anderson called his state’s measure a “vague and just a poorly written law” that he said could be applied to disputes between private citizens. “You can defend yourself in a criminal or civil action on the very broad basis of ‘any exercise of religion,’” which is how it could be used to discriminate against gays and others, he argued.

Richard Garnett, a law professor at the University of Notre Dame in northern Indiana, in an opinion column in the March 26 issue of the South Bend Tribune, called the state’s RFRA a “moderate measure” modeled after the federal law and those of several other states and said it “does not give anyone a ‘license to discriminate.’”

Garnett noted that the more than 20 years of history of the applying of RFRA statutes to specific cases shows that courts across the country “have not applied it to require excessive accommodations or exemptions from anti-discrimination laws and civil-rights protections.”

In response to criticism, House Speaker Brian Bosma and Senate President Pro Tem David Long announced that the General Assembly will consider legislation to clarify the religious freedom law, which received a large majority of support from both chambers. The Senate passed the bill 40-10, and the House approved it 63-31.

Several House members spoke out against the bill during floor debate.

Democratic Rep. Ed Delaney of Indianapolis called the bill “futile and destructive,” adding that he felt the bill would allow discrimination. House Minority Leader Rep. Scott Pelath, a Democrat from Michigan City, also raised concerns, saying that he also believed the bill would permit discrimination.

Democratic Reps. Vernon Smith of Gary and Cherrish Pryor of Indianapolis, who are African-Americans, said even though they were devout Christians, they opposed the bill because they believed it could potentially cause discrimination.

In his opinion piece, Garnett pointed out that religious freedom laws have helped people of a broad variety of faiths.

“In practice, over the last two decades or so, Religious Freedom Restoration acts have been used not to excuse illegal discrimination or harmful behavior but instead to secure humane accommodations,” Garnett said, “such as allowing members of a small Brazilian church to possess plants that are necessary to make sacramental tea, or preventing the government from firing a Rastafarian with a traditional haircut, or respecting a family’s religious objections to an autopsy of their loved one.”

Professor Daniel Conkle of Indiana University’s Maurer School of Law has repeatedly sought to debunk the claims that RFRA allows for discrimination, citing current legal cases in support of his position. He testified during the House and Senate hearings, and reiterated his position in a recent opinion column in The Indianapolis Star.

Conkle, a constitutional law expert who supports gay rights and same-sex marriage, said the RFRA legislation has “little to do with same-sex marriage and everything to do with religious freedom.”

He added that “most religious freedom claims have nothing to do with same-sex marriage or discrimination.”

Conkle said in his column the Indiana law is “anything but a license to discriminate, and it should not be mischaracterized or dismissed on that basis.”” According to Conkle, even in the narrow setting of wedding service providers, claims for religious exemptions recently have been rejected in various states, including states that have adopted RFRA legislation.

 

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