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The U.S. Court of Appeals for the Tenth Circuit recently ruled against the Little Sisters of the Poor, who argued the Affordable Care Act’s provision requiring insurance coverage for contraception is at odds with their religious beliefs even if they are not themselves providing the contraception.

Katherine Franke, director of the Center for Gender & Sexuality Law at Columbia Law School said the case is similar to one raised by craft shop Hobby Lobby. The cases differ, though, in that Hobby Lobby is a for-profit company that was seeking the right to have a separate entity provide government mandated contraception, as is the case for religious non-profits.

The Supreme Court ruled that Hobby Lobby is allowed the same accommodations provided to religious non-profits, which allows for a Form700 and be filed to absolve the responsibility of providing the contraception based on religious grounds.

“The thinking was that this would be a win-win, the female employees would still receive insurance coverage for contraception, as required by law, and the company’s religious liberty interests could be accommodated,” said Franke, adding, though that, “in fact, it didn’t create a win-win insofar as the employees of Hobby Lobby are still not receiving coverage for contraception over a year later.”

However, the Little Sisters of the Poor raised a different question that gets at the heart of where religious rights lay and what it truly means to be responsible for providing the contraceptives they view to be at odds with their morality. They contested their religious liberties are being violated by taking part in the process to file the Form 700.

They face IRS penalties if they do not comply with the ruling. Franke explained the crux of their argument: “Filling out and signing the form ‘triggers’ the provision of contraception and thus implicates the religious objectors in what they consider to be sinful conduct.”

However, the courts disagreed. “The 10th Circuit Court of Appeals rejected this argument, finding that the form doesn’t trigger the provision of contraceptive care, rather the Affordable Care Act does. What the form does is remove religious objectors from any involvement in this aspect of health care, shifting to a third party the responsibility for doing so.”

She said the court ruled that religious objections permit a lawful opt-out of the mandate, but ultimately cannot “preclude the government from requiring others to provide the legally required coverage in its stead,” and further, the accommodation is “among the common and permissible methods of religious accommodation in a pluralist society.”

According to information provided by the Little Sisters of the Poor’s counsel, the Becket Fund for Religious Liberty, they will continue to push the matter and are willing to take the case to the Supreme Court of the United States. However, Franke said there is a slim chance the case will make its way to the nation’s highest court as the 10th Circuit decision is consistent with other similar cases.

“So far this argument has lost in every case it has been raised. Typically, the Supreme Court won’t take a case unless there is a conflict among the lower courts, and we don’t have that here,” she said. Mark Rienzi, senior counsel of the Becket Fund for Religious Liberty and lead attorney for the Little Sisters of the Poor expressed dissatisfaction with the decision.

“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,” he said. “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.

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