WASHINGTON — The Obama administration quietly revealed this week it is reworking its existing accommodation for religious nonprofits to opt out of providing objectionable contraceptives while preserving their conscience, perhaps further limiting the Affordable Care Act.
In a brief filed Tuesday in the 10th Circuit Court of Appeals in Denver, federal attorneys revealed the departments of Health and Human Services, Labor and the Treasury are ready to accommodate religious organizations that want no involvement in birth control to anyone.
The administration's existing accommodation to allow nonprofits to comply with the health law consists of filing a form that would shift the burden of providing and paying for contraceptives to a third-party. But groups such as the Little Sisters of the Poor, in whose lawsuit the federal brief was filed, objected, arguing that even signing a form declining to pay for contraception would make them complicit in furnishing birth control they deem violates their faith.
The agencies implementing the HHS mandate have decided to change "the regulatory accommodation process and that they plan to issue interim final rules within a month," or by Aug. 22, 2014, according to the brief, which did not give any details on what the changes would entail.
But it is uncertain whether the change would satisfy religious objectors that say government should simply drop the mandate when it comes to religious groups. The Becket Fund for Religious Liberty, which represents the Little Sisters, said this latest effort was "at least the seventh time in three years" that federal policymakers have backed off of claims that an exemption to the ACA rules is only available to a house of worship that exclusively hires and serves fellow believers.
"This is just the latest step in the government’s long retreat on the HHS Mandate," said Lori Widham, senior counsel at the Becket Fund. "Religious ministries want to focus on ministry — such as sharing their faith and serving the poor — without worrying about the threat of massive IRS penalties. They are praying that the government’s new rules will allow them to do so."
Approximately 101 lawsuits have been filed by for-profit and nonprofit companies and organizations seeking exemption from the ACA's birth control mandate on religious liberty grounds. On June 30, the Supreme Court ruled in favor of privately held Hobby Lobby Stores Inc. and Conestoga Wood Products, which claimed the mandate violated conscience protections under the Religious Freedom Restoration Act.
Four days later, the high court issued an injunction protecting Wheaton College, an evangelical Christian school in Wheaton, Illinois, from federal enforcement action while it litigates claims about how it can comply with the law while not violating its beliefs. Wheaton maintains its "religious convictions prevent it from providing its employees with access to abortion-causing drugs that can harm human life," according to a news release announcing the college's lawsuit against the federal government.
It was the Wheaton injunction that prompted the latest effort to change the mandate's rules for nonprofits, the Justice Department brief stated.
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