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Government argues birth control mandate doesn't violate religious freedom

Published: Friday, Jan. 3 2014 6:40 p.m. MST

The government on Friday said 'with the stroke of a pen' a group of nuns can be exempt from the government's birth control mandate. But the nuns say following that very counsel would be a violation of their religious beliefs.

J. Scott Applewhite, Assoicated Press

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The government on Friday asked the U.S. Supreme Court to deny a request to halt enforcement of the Affordable Care Act's contraception requirement, arguing that the law does not violate the religious freedom of a group of nuns challenging the mandate.

The Little Sisters of the Poor, which claims it faces millions of dollars in fines if it doesn't comply with the mandate, can avoid having to provide birth control to its employees if simply signs a document saying it objects, the government contended in its brief.

"In particular, with the stroke of their own pen, applicants can secure for themselves the relief they seek from this court — an exemption from the requirements of the contraceptive-coverage provision," Solicitor General Donald B. Verrilli Jr. wrote.

But signing a government certification form that effectively shifts the mandate's obligations onto a third-party would still violate the conscience rights of the nuns, whose Catholic beliefs prohibit facilitating the use of any form of artificial birth control, sterilization or abortion, their attorney said.

“Unfortunately, the federal government has started the new year the same way that it ended the old one: trying to bully nuns into violating their religious beliefs," said Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty, which is representing the religious order of nuns.

Supreme Court Justice Sonia Sotomayor, a Catholic appointed to the bench by President Barack Obama, granted the emergency injunction on New Year's Eve just hours before the controversial contraception provision was to take effect. It is not known when the court will make a final ruling on the injunction.

The Little Sisters of the Poor appealed to the Supreme Court after the federal district court and the 10th Circuit Court of Appeals in Denver denied an injunction. Both lower courts sided with the government's view that it is "pure conjecture" to conclude that signing government documents would violate the nuns' religious freedom.

The government made that same argument in its response to the Supreme Court, acknowledging a loophole exists in the mandate that protects religious orders like the Little Sisters of the Poor because its employees are insured through a "church plan," which is exempt.

But the response also states that the Little Sisters would still need to sign a certification with the government that it objects on religious grounds to providing contraceptives to its employees.

“The government now asks the Supreme Court to believe that the very thing it is forcing the nuns to do — signing the permission slip — is a meaningless act," Rienzi said. "But why on earth would the government be fighting the Little Sisters all the way to the Supreme Court if it did not think its own form had any effect?"

He said if the government believed the mandate was valid, it would also ask the Supreme Court to review how the mandate applies to groups like the Little Sisters of the Poor.

For-profit, non-profit

The government and opponents of the mandate have jointly asked the Supreme Court to hear another appeal on whether the contraception mandate violates the religious freedom of private business owners.

That case involves the owners of Hobby Lobby Stores, who claim their Christian beliefs against abortion prevent them from providing emergency contraceptives. The justices have also agreed to hear a similar appeal by Conestoga Wood Specialities, a Mennonite-owned cabinet maker in Pennsylvania. Both cases will reportedly be heard in March.

Hobby Lobby and Conestoga are among 46 for-profit companies that have sued the government over the ACA's birth control mandate. The Little Sisters of the Poor is among 45 nonprofits that have sued.

Eric Rassbach, an attorney for the Becket Fund, explained that the main issue in the nonprofit cases deals with a certification form that must be signed that authorizes a third-party insurer to handle the contraception coverage for a non-profit religious objector.

The administration came up with the third-party solution after religious groups protested that the birth control mandate forced them to either violate tenets of their faith or pay hefty fines imposed by the government.

But shifting the responsibility for the contraception requirement hasn't satisfied many religious nonprofits that say they want a blanket exemption like that offered to churches and other houses of worship.

Rassbach said that so far, 18 federal courts have granted injunctions requested by religious non-profits against the mandate. Two courts have denied injunctions, one for the Little Sisters of the Poor and the other for Notre Dame University.

The Little Sisters case is unusual because that third party, Christian Brothers Services and Christian Brothers Employee Benefits Trust, handles health benefits for other Catholic nonprofits. But Rassbach said Christian Brothers, which is a plaintiff in the lawsuit, contracts with a secular provider for its pharmaceutical coverage, which includes birth control.

Basically, Rassbach explained, the Little Sisters of the Poor and Christian Brothers don't trust the government's assurances that the certification form is meaningless in their cases because of the unusual circumstances.

"The bottom line is the sisters need protection," he said.

Big fines

The Little Sisters, which operate nursing homes for the elderly poor in the United States and around the world, would face fines of up to $2.5 million a year for not complying with the mandate, according to court documents.

The documents also show that nearly 500 Catholic non-profit ministries provide employee benefits through the (Christian Brothers) Trust and face "onerous daily fines" unless they comply with the contraception mandate.

In a statement issued Wednesday, the White House said the ACA rules "strike the balance of providing women with free contraceptive coverage while preventing non-profit religious employers with religious objections to contraceptive coverage from having to contract, arrange, pay, or refer for such coverage.”

But Rienzi said the government can find a better way to meet its objective goal of providing free contraceptives to all women.

“Our federal government is massive and powerful," he said. "It can obviously find ways to distribute contraceptives and abortion pills without forcing nuns to be involved.”

Email: mbrown@deseretnews.com, Twitter: @deseretbrown

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