Nonprofits' contraceptive cases next for justices

Faith-affiliated organizations don't pay for birth control but complain they are still complicit in providing it
Associated Press
Jul 7, 2014


How much distance from an immoral act is enough?

That's the difficult question behind the next legal dispute over religion, birth control and the health law that is likely to be resolved by the Supreme Court.

The issue in more than four dozen lawsuits from faith-affiliated charities, colleges and hospitals that oppose some or all contraception as immoral is how far the Obama administration must go to accommodate them.

The justices on June 30 relieved businesses with religious objections of their obligation to pay for women's contraceptives among a range of preventive services the new law calls for in their health plans.

Religious-oriented nonprofit groups already could opt out of covering the contraceptives. But the organizations say the accommodation provided by the administration does not go far enough because, though they are not on the hook financially, they remain complicit in the provision of government-approved contraceptives to women covered by their plans.

"Anything that forces unwilling religious believers to be part of the system is not going to pass the test," said Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty, which represents many of the faith-affiliated nonprofits. Hobby Lobby Inc., winner of its Supreme Court case last month, also is a Becket Fund client.

The high court will be asked to take on the issue in its term that begins in October. A challenge from the University of Notre Dame in South Bend, Indiana, probably will be the first case to reach the court.

The Obama administration argues that the accommodation creates a generous moral and financial buffer between religious objectors and funding birth control. The nonprofit groups just have to raise their hands and say that paying for any or all of the 20 devices and methods approved by government regulators would violate their religious beliefs.

To do so, they must fill out a government document known as Form 700 that enables their insurers or third-party administrators to take on the responsibility of paying for the birth control. The employer does not have to arrange the coverage or pay for it. Insurers get reimbursed by the government through credits against fees owed under other parts of the health law.

Houses of worship and other religious institutions whose primary purpose is to spread the faith are exempt from the requirement to offer birth control.

The objections by religious nonprofits are rooted in teachings against facilitating sin.

Roman Catholic bishops and other religious plaintiffs argue that filling out the government form that registers opposition to contraceptives, then sending the document to the insurer or third-party administrator, is akin to signing a permission slip to engage in evil.

In the Hobby Lobby case, the justices rejected the government argument that there was no violation of conscience because the link between birth control coverage and the outcome the employer considers morally wrong was slight.

Just hours after the Hobby Lobby decision, the 11th U.S. Circuit Court of Appeals in Atlanta granted a temporary reprieve to the Alabama-based Eternal Word Television Network. Judge William H. Pryor Jr. said in a separate opinion in that case that the administration "turns a blind eye to the undisputed evidence that delivering Form 700 would violate the Network's religious beliefs."

But the Supreme Court could draw a distinction between subsidizing birth control and signing a document to deputize a third-party to do so, said Robin Fretwell Wilson, a family law specialist at the University of Illinois College of Law.

"Think about how thinned down that objection is," Fretwell Wilson said. "The court might say that is a bridge too far."

Judge Karen Nelson Moore of the 6th U.S. Circuit Court of Appeals in Cincinnati said the document is a reasonable way for objecting organizations to inform the insurer, but that the obligation to cover contraception is in the health law, not the form.

"Self-certification allows the eligible organization to tell the insurance issuer and third-party administrator, 'We're excused from the new federal obligation relating to contraception,' and in turn, the government tells those insurance companies, 'But you're not,'" the judge wrote.

People on both sides of this argument are looking to the Hobby Lobby case for clues about how the justices might come out in this next round.

In a Supreme Court filing, the Justice Department said the outcome strongly suggested that the court would rule in its favor when considering the nonprofits' challenge.

"The decision in Hobby Lobby rested on the premise that these accommodations 'achieve all of the Government's aims' underlying the preventive-health services coverage requirement 'while providing greater respect for religious liberty,'" the Justice Department wrote, quoting from Justice Samuel Alito's majority opinion. The legal filing was in opposition to an emergency plea from Wheaton College in Wheaton, Illinois, to avoid having to fill out Form 700. Wheaton is one of only a few nonprofits not to have won temporary relief in its court fight.

Rienzi, who also represents Wheaton, wrote in reply that the government is wrong to assume that the Hobby Lobby decision "blessed the accommodation." He noted that Alito specifically said the court was not deciding whether the administration's workaround for nonprofits adequately addressed their concerns.

On Thursday, the court, with three justices dissenting, allowed Wheaton to avoid using the form while its case remains on appeal. Instead, the college can send written notice of its objections directly to the Health and Human Services Department rather than the insurer or the third-party administrator. At the same time, the government can take steps to ensure that women covered by Wheaton's health plan can get emergency contraception the college won't pay for.

Several legal experts said that perhaps a simple revision to the government document at the center of the dispute could resolve matters.

"I think the question will come down to does the government really need them to tell the insurance companies or can you reword the form," said Marc Stern, a religious liberty specialist and general counsel for the American Jewish Committee. The faith-affiliated charities "might win a redrafting of the form. I don't think they can win an argument that says we can do absolutely nothing," Stern said.




Re: "they must fill out a government document known as Form 700,"

In the Brave New World of the American Bolsheviks, if one desires to exercise one's 1st Amend. rights one is required to first complete an approved State document.



"The BIG threat to Obamacare (that you've never heard of)":

"If you wake up tomorrow and hear a top U.S. court has issued a ruling that could end up effectively destroying much of Obamacare, don't say we didn't warn you."

Should be interesting.


My faith dictates I don't pay taxes of any kind. Kinda like the multi-national corporations. ("The real Central-planning committee is owed and operated by the Plutocrats.")


Re: "My faith dictates I don't pay taxes of any kind.'

No, the U.S. tax code dictates their NFP status.


90% of Catholics use birth control, against the teachings of the church. Perhaps it might be a good thing if faith-based groups and churches joined the new millennium and became more of a true reflection of their followers.

In a time when church attendance is dropping and numbers of non-believers is rapidly growing, one would think that they might realize that stubbornly clinging to outdated dogma isn't the answer, either for attracting new members or for retaining disillusioned parishioners.

Apparently, they do realize this, even if they won't admit it. Churches do seem to advertise a LOT more than they did when I was growing up in the 60's...


Re: "Catholics,"

The implications for heavy handed socialist mandated diktats extend to numerous dominations and faiths other than just the RCC.

I won't be surprised when eventually the red shirted thugs threaten their NFP federal income tax status over same sex marriage and other issues.

Pterocarya frax...

The Catholic Church is kinda like the Republican Party in that respect:

“The demographics race we’re losing badly,. We’re not generating enough angry white guys to stay in business for the long term.” Sen. Lindsey O. Graham (S.C.


Yep! A Newsweek cover said it best back in 2009:

"We Are All Socialists Now"

"O wonder! How many goodly creatures are there here!
How beauteous mankind is! O brave new world. That has such people in't!"

- Shakespeare, "The Tempest"


"The Catholic Church is kinda like the Republican Party in that respect:"

Except for that pesky Amendment that says freedom of religion. That kind of trumps all your foot stomping and whining. Well maybe not stops it, but does pretty well put it in its place, as being immaterial. Your opinion means nothing when it runs into the Constitution and Amendments. Game over

Pterocarya frax...

"that pesky Amendment" you refer to is absolutely what this SCOTUS ruling was all about......just not in the way you seem to think it is.

The 5 Catholic guys on the court just instituted the next step in destroying the part of that pesky amendment that comes before the first comma. This ruling is just part of the plan to create "the great theocracy".


Re: "the great theocracy"

Hysterical BS. The U.S. isn't and won't become Iran or the Vatican.


"This ruling is just part of the plan to create "the great theocracy"."

Are you wearing you tin foil hat and sitting facing Washington DC, so you can be facing your Messiah? I LUV conspiracy theorists. (don't want to call them nuts where they can hear, you have no idea how nuts they really are, but the tin hat says volumes)

The Hero Zone's picture
The Hero Zone

Thanks for at least not saying "five white men" like the illustrious Sen. Reid did in his attempt to make as bombastic, race-riddled statement as possible.