nun

A nun attends a rally with other supporters of religious freedom to praise the Supreme Court’s Hobby Lobby decision in June 2014.

Two judges on the 10th U.S. Circuit Court of Appeals have ruled that the Obama administration can force the nuns of the Little Sisters of the Poor in Denver to pay for abortion-causing drugs,although the split 2-1 opinion left no doubt about how deeply divided the nation is over the issue.

The rules of Obamacare require employers to cover contraceptives, including abortion-causing drugs. Although there is an exemption for churches, faith-based groups like the Little Sisters of the Poor, who run homes for needy elderly around the world, must comply or face penalties.

Judge Bobby Baldock objected to the majority ruling written by Scott Matheson, an Obama appointee, and joined by Monroe McKay.

Obamacare’s “accommodation scheme,” Baldock wrote, “forces the self-insured plaintiffs to perform an act that causes their beneficiaries to receive religiously objected-to coverage.”

“The fines the government uses to compel this act thus impose a substantial burden on the self-insured plaintiffs’ religion exercise. … Moreover, less restrictive means exist to achieve the government’s contraceptive coverage goals here,” he wrote.

Sr. Loraine Marie Maguire, a spokeswoman for the Little Sisters of the Poor, said it’s not a workable solution.

“As Little Sisters of the Poor, we simply cannot choose between our care for the elderly poor and our faith,” she said in a statement. “And we should not have to make that choice, because it violates our nation’s commitment to ensuring that people from diverse faiths can freely follow God’s calling in their lives.”

Maguire said that for more than 175 years, her group has “served the neediest in society with love and dignity.”

“All we ask is to be able to continue our religious vocation free from government intrusion,” she said.

Mark Rienzi, senior counsel for the Becket Fund, is lead attorney for the Little Sisters.

“After losing repeatedly at the Supreme Court, the government continues its unrelenting pursuit of the Little Sisters of the Poor,” he said. “It is a national embarrassment that the world’s most powerful government insists that, instead of providing contraceptives through its own existing exchanges and programs, it must crush the Little Sisters’ faith and force them to participate. Untold millions of people have managed to get contraceptives without involving nuns, and there is no reason the government cannot run its programs without hijacking the Little Sisters and their health plan.”

The court claimed participating in the government’s contraception delivery scheme is “as easy as obtaining a parade permit, filing a simple tax form, or registering to vote.” The court rejected the Sisters belief that participating in the scheme “make[s] them complicit in the overall delivery scheme.”

“We will keep on fighting for the Little Sisters, even if that means having to go all the way to the Supreme Court,” said Daniel Blomberg, counsel at the Becket Fund for Religious Liberty.

Baldock said the majority simply got it wrong.

“The government has left self-insured plaintiffs in a position where they must decide whether their beneficiaries will actually receive objected-to contraceptive coverage,” he wrote. “The accommodation does not absolve these plaintiffs of this responsibility. Instead, it forces them to either (1) violate their sincere religious beliefs by performing an action that will cause their beneficiaries to receive objected-to coverage, or (2) violate the law. … This is a Hobson’s choice and thus a substantial burden on their religious exercise.”

He said the way the Obama administration has arranged the rules, “the orders would indeed force self-insured religious objectors to perform an act that causes the ultimate provision of the coverage, as they would make the provision of the coverage wholly contingent upon the religious objectors’ acts of providing HHS with that notice.”

The ruling addressed several consolidated cases. The plaintiffs argue that to opt out, the government requires groups like the Little Sisters to actively file paperwork declaring they will not participate in providing abortion-causing drugs. But that submission then triggers other ways for the drugs to be provided to employees. So their allegation has been that the submission of paperwork to opt out actually triggers the delivery of the drugs.

Baldock said that’s essentially correct, and he insisted it’s wrong for the government to impose its will that way.

Even the majority identified the concern as the “process” to opt out and the organization’s claim that it violates its religious exercise.

The judges ruled that even though the “Little Sisters have always excluded coverage of sterilization, contraception and abortifacients from their health care plan in accordance with their religious belief that deliberately avoiding reproduction through medical means is immoral,” the government can force them to comply

The government is looking at penalties of up to $2.5 million per year for the nuns.

The majority judges, Matheson and McKay, however, contended that forcing the nuns and others to file with the government paperwork that would trigger the availability of contraceptives for workers does not “substantially burden … religious exercise.”

The bottom line, the two judges wrote, is that the “accommodation scheme does not give plaintiffs discretion to thwart their employees’ right to contraceptive coverage by refusing to provide coverage and also refusing to register their objection so the government can make alternative arrangements to free them from providing coverage.”

“Because Congress has created a federal entitlement to contraceptive coverage and formulated a framework to guarantee that coverage will be provided even if plaintiffs decline to provide it, self-insured plaintiffs do not ’cause’ contraceptive coverage by exercising their ability to opt out,” they wrote.

Wrong, Baldock wrote.

He said that deciding “whether the religious belief asserted in a RFRA case is reasonable” is a question “that the federal courts have no business addressing.”

“The accommodation scheme substantially burdens any religious non-profit that objects to performing an act that would cause or otherwise make it complicit in providing contraceptive coverage simply because the scheme uses substantial fines to compel an act that the non-profit sincerely believes would have that effect,” he wrote.

“Because the government has conceded (2) the sincerity of (3) the religious exercise at issue, the only issue left to address is whether the government has shown that the accommodation survives strict scrutiny.”

Baldock said the government “has not made this showing.”

“The accommodation scheme foists upon the self-insured plaintiffs a choice with dire consequences. Either (1) they refuse to act, which would avoid causing their plan beneficiaries to receive objected-to coverage but trigger crippling fines. … Or (2) they act, which would cause … this coverage and violate their faith.”

He continued: “Conscription law requires that ‘someone’ go to war, and in the end ‘someone’ will go to war. The law is such that the government can and will shift this legal duty to a non-objector regardless of the objector’s action or inaction. Conversely, the ACA says ‘someone’ must provide contraceptive coverage, but the self-insured accommodation was drafted such that if the self-insured plaintiffs choose to do nothing rather than opt out, no one will actually provide that coverage.”

He said the government “cannot force the plaintiffs to provide the coverage, and it cannot shift the duty to provide the coverage unless the self-insured plaintiffs choose to opt out.”

“Presently, the law forces the self-insured plaintiffs into gatekeeping positions and then uses fines to force them to open the gates.”

WND reported the case, Little Sisters of the Poor v. Burwell, is one of dozens filed against the Obama administration by religious schools, organizations and others over the government’s decision to force them to violate their faith or pay massive IRS penalties.

Hear their comments:

The plaintiffs in the many lawsuits point out the Obama administration has created exemptions for a multitude of other groups but not them.

WND reported when a legal brief filed in the case said it looked like the Obama administration was going out of its way to force the Catholic sisters to provide birth control in violation of their faith.

“The government’s latest interim rules – the seventh set of revisions to the mandate in 36 months – change nothing of substance in this appeal,” explained a court filing in the dispute.

“The government easily could have eliminated the need for this appeal,” contended the brief filed by the Becket Fund for Religious Liberty.

“It could have exempted the Little Sisters as ‘religious employers’ – just as it would if the Little Sisters’ homes were operated by Catholic bishops,” the brief argued. “It could have exempted church plans. It could have adopted the ‘most straightforward’ path of just providing contraceptives itself … such as through Title X or tax incentives.

“Most simply, it could just allow employees of religious objectors to purchase subsidized coverage on the government’s own exchanges,” the brief states.

“But instead of these obvious and more direct approaches, the government continues to insist that the only way the United States could possibly distribute contraceptives is with the forced participation of the Little Sisters. … Thus the government seeks to coerce the Little Sisters to participate by giving information about its plan and plan administrators.”

Legal Counsel Daniel Blomberg told WND at the time that because of their lifelong commitment to adhere to biblical teachings, “the Little Sisters can’t provide the drug themselves.”

“They can’t sign a form. They can’t do anything that allows their plan … to be hijacked to deliver the drugs.”

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