The dispute over the Obamacare requirement that faith-based schools and other enterprises provide “morally objectionable” abortion pills for their employees is ratcheting up to new levels, including among the judges ruling on the issue.

In a decision Friday by a three-judge panel of the 7th U.S. Circuit Court of Appeals, two of the judges said the schools and others that brought the case must pay for the abortion-inducing chemicals for their employees or specifically authorize someone else to do it.

Judges Ilana Rovner and David Hamilton ruled for the Obama administration in the case brought by the Diocese of Fort Wayne-South Bend, Catholic Charities of the Diocese of Fort Wayne-South Bend, St. Anne Home, Franciscan Alliance, Specialty Physicians of Illinois, University of St. Francis, Our Sunday Visitor, Biola University and Grace Schools,

“It is the operation of the law, not any actions that the plaintiffs must take, that causes the provisions of services that the plaintiffs find morally objectionable,” the majority summed up.

“The accommodation has the legal effect of removing from objectors any connection to the provision of contraception services. As we noted above, every other circuit court to consider the issue of whether the mandate imposes a substantial burden on religious exercise has come to the same conclusion.

“As a result, the plaintiffs are not entitled to a preliminary injunction against the enforcement of the ACA regulations.”

However, Judge David Manion, in a dissent, took the other judges to task.

He explained that while HHS exempts churches from the requirement, church-related organizations and operations violate their faith when they provide or authorize abortion-causing drugs. And he said a government “accommodation,” which allows the organizations to sign over the responsibility for providing the drugs to an outside agency, actually doesn’t help at all.

“The HHS accommodation is the long and winding extension cord the government uses to power its contraceptive mandate. It winds through regulations and additions and revisions. The court, through a perfunctory examination, interprets the accommodation’s twisted framework and holds that it frees the religious nonprofits from having to power the mandate themselves, and, thus, does not violate the [Religious Freedom Restoration Act].

“The court is wrong,” he said. “A thorough examination reveals that the accommodation’s tangled mess is hiding the fact that the extension cord gets its power from the nonprofits’ health plans and must be plugged in before it will work. It also exposes the fact that the government is forcing the nonprofits to plug in the accommodation themselves by signing the self-certification or providing the alternative notice.”

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Senior Counsel Gregory Baylor of the Alliance Defending Freedom said the issue isn’t complicated.

“The government should not force religious colleges and universities to be involved in providing abortion pills to their employees or students. All Americans should oppose unjust laws that force people – under threat of punishment – to give up their fundamental freedoms in order to provide health plans the government prefers. These Christian schools simply want to abide by the very faith they espouse and teach, just as such schools have done since the founding of the country. We will be consulting with our clients to consider our options.”

Just a day earlier, WND reported on an unusual opinion released by five judges on the nearby 10th U.S. Circuit Court of Appeals.

A 2-1 panel in the court also had ruled against the Little Sisters of the Poor on the same question, and the sisters immediately took the case to the Supreme Court.

Regarding the sisters, the judges concluded the judiciary should not be put in the position of evaluating the reasonableness of religious beliefs.

“Could we really tolerate letting courts examine the reasoning behind a religious practice or belief and decide what is core and what is derivative? A Christian could be required to work on December 25 because, according to a court, his core belief is that he should not work on the anniversary of the birth of Jesus but a history of the calendar and other sources show that Jesus was actually born in March; a December 25 work requirement therefore does not substantially burden his core belief,” they wrote.

“Or a Jewish prisoner could be provided only non-kosher food because the real purpose of biblical dietary laws is health, so long as the pork is well-cooked, etc., the prisoner’s religious beliefs are not substantially burdened,” they wrote.

“The Supreme Court has refused to examine the reasonableness of a sincere religious belief – in particular, the reasonableness of where the believer draws a line between sinful and acceptable – at least since Thomas v. Review Board of Indiana Employment Security Division,” they continued.

They said: “The doctrine of the panel majority will not long survive. It is contrary to all precedent concerning the free exercise of religion. I am aware of no precedent holding that a person’s free exercise was not substantially burdened when a significant penalty was imposed for refusing to do something prohibited by the person’s sincere religious beliefs (however strange, or even silly, the court may consider those beliefs).”

The opinion was written by Judge Harris Hartz, who was joined by Neil Gorsuch, Jerome Holmes, Timothy Tymkovich and Paul Kelly.

It explained that after the 10th Circuit’s original decision against the nuns, the plaintiffs petitioned the U.S. Supreme Court. Nonetheless, there was a vote at the 10th Circuit on whether the full court should review the case, which went against the plaintiffs.

The dissenting judges wrote: “When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion. All the plaintiffs in this case sincerely believe that they will be violating God’s law if they execute the documents requirement by the government. And the penalty for refusal to execute the documents may be in the millions of dollars. How can it be any clearer that the law substantially burdens the plaintiffs’ free exercise of religion?”

In the new majority opinion from the 7th Circuit, the judges note the objecting organizations can fill out a two-page form that transfers authorization to someone else to provide the abortion-causing drugs.

But the drugs cannot be provided without the authorization, meaning the organizations ultimately are providing the drugs.

Manion pointedly wrote that it is the plaintiffs who “correctly understand the accommodation’s operation.”

Further, he said the government “has failed to establish any of the causal links necessary to prove that increasing the availability of contraceptive services will improve the health of women generally, let alone that of the nonprofits’ employees.”

“Furthermore,” he wrote, “the government’s stated interest is overbroad, underinclusive, and marginal at best.”

“The nonprofits have a significant likelihood of success on the merits of their claim and the district court’s preliminary injunction should be affirmed,” he wrote.

The Obama administration lost a related case, involving Hobby Lobby stores, at the Supreme Court earlier.


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