(CN) – A group of Roman Catholic nuns in Colorado has asked the Supreme Court to toss a 10th Circuit ruling that allows their employees to receive birth control from a third party under the Affordable Care Act.
In a petition for a writ of certiorari filed Thursday, the Little Sisters of the Poor and four Oklahoma Christian colleges argue last week’s ruling by the appellate court violates their religious freedom.
“This Court has already considered the direct method of compliance and concluded that it imposes a substantial burden on religious exercise and violates the Religious Freedom Restoration Act,” they write. “It is undisputed, however, that nonexempt religious employers such as petitioners hold equally sincere religious objections to the regulatory method of compliance as well.
“It is further undisputed that they face draconian fines if they refuse to comply via one of those two avenues,” they add.
The petition asks the justices to consider three questions:
Whether the availability of a regulatory method for nonprofit religious employers to comply with Department of Health and Human Services’ contraceptive mandate eliminate either the substantial burden on religious exercise or the violation of Religious Freedom Restoration Act (something the petitioners note the Supreme Court recognized in Burwell v. Hobby Lobby Stores, Inc.)?
Whether the Department of Health and Human Services is fulfilling its obligation under the Act to take into account the petitioner’s overriding the religious objection to providing of no-cost contraceptives to the their employees?
Whether the First Amendment allows the agency to discriminate among nonprofit religious employers who share the same sincere religious objections to the contraceptive mandate by exempting some religious employers while insisting that others comply?
On July 15, a divided three-judge panel concluded that the Patient Protection and Affordable Care Act and associated enabling regulations promulgated by the Department of Health and Human Services and other agencies does not infringe on the nuns’ free exercise of religion by requiring them to fill out a form to opt-out of employee contraceptive coverage.
“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 [Religious Freedom Restoration Act] or infringe upon their First Amendment rights,” U.S. Circuit Judge Scott Matheson Jr. said, writing for the panel’s majority.
Requiring religious objectors to complete a simple administrative task does not substantially burden their religious freedom, the court ruled.
The government has “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,” Matheson wrote.
U.S. Circuit Judge Bobby Baldock dissented, finding a distinction between insured and self-insured plaintiffs.
“The Court properly rejects the insured plaintiffs’ RFRA claim, as their action or inaction will not affect whether their plan beneficiaries receive objected-to coverage,” Baldock wrote. “But the self-insured plaintiffs’ inaction will prevent their plan beneficiaries from receiving the coverage. If their beneficiaries receive this coverage, it is only because the self-insured plaintiffs, by opting out, caused that effect. Thus, the self-insured plaintiffs have shown how their opting out would cause the provision and receipt of objected-to coverage and established a substantial burden on their religious exercise.” (Emphasis in original.)
The nuns and the Christian colleges continue to argue that their ability to opt out of providing contraceptives directly is inadequate because a third party will still end up providing birth control coverage in opposition to their religious beliefs.
“The 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 nuns. “But instead of simply exempting them, the government insists that it can take over their ministry’s employee healthcare to distribute these drugs to their employees, while dismissing the Sisters’ moral objections as irrelevant,” said Rienzi. “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 healthcare exchanges that can provide whatever it wants.”
In June 2014, the Supreme Court held in the Hobby Lobby case that closely held businesses owned by individuals with religious objections are exempt from the law’s contraception mandate.
“The government has lost every single time they have made these arguments before the Supreme Court-including last year’s landmark Hobby Lobby case,” Rienzi said. “One would think they would get the message and stop pressuring the Sisters. The government is willing to exempt big companies like Exxon, Chevron, and Pepsi Bottling, but it won’t leave the Little Sisters alone.”
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