Guess which ObamaCare case will be headed to the Supreme Court next? At least, that’s the option open for the Little Sisters of the Poor and their defense team at The Becket Fund for the restoration of a temporary injunction against compliance with the HHS mandate. The 10th Circuit handed the nuns a defeat this morning, vacating the earlier temporary injunction ordered by a lower court:

Moments ago, in a departure from the U.S. Supreme Court’s protection of the Little Sisters of the Poorlast year, the U.S. Court of Appeals for the Tenth Circuit ruled that the Little Sisters must comply with the government’s HHS mandate. This mandate forces religious ministries to violate their faith or pay massive IRS penalties …

The Tenth Circuit heard oral argument in this case December of last year, when for the first time since the case began, Sr. Loraine Marie Maguire, Mother Provincial of the Little Sisters of the Poor, delivered a public statement on the case (see statement here). 

Today the Tenth Circuit ruled that government can force the Little Sisters to either violate their faith or pay massive IRS penalties. The court held that participating in the government’s contraception delivery scheme is “as easy as obtaining a parade permit, filing a simple tax for, or registering to vote” and that although the Sisters sincerely believe that participating in the scheme “make[s] them complicit in the overall delivery scheme,” the court “ultimately rejects the merits of this claim,” because the court believes the scheme relieves [the Little Sisters] from complicity.”

The Little Sisters and their attorneys are closely reviewing the court’s decision and will decide soon whether they must seek relief from the Supreme Court.

“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.

The Court’s order similarly harms Christian Brothers Services and Christian Brothers Employee Benefit Trust, the Catholic ministries through which the Little Sisters obtain their health coverage.

This means that the Little Sisters of the Poor will be forced to comply with the mandate or face ruinous penalties, even while appealing their denial of religious exemption by HHS. The idea that Catholic nuns are somehow required to provide contraception through their insurer to their employees — who had to know that Catholic nuns would be the last group one would ask for contraception — demonstrates just how ridiculous this mandate is.

The decision, which is very lengthy, was unanimous on the issues for the LSP nuns. The sole dissent in part addresses the way this decision broadly addresses the impact on self-insuring non-profits:

Today the Court holds, among other things, that the ACA contraceptive Mandate’s accommodation scheme does not substantially burden religious non-profits that object to facilitating contraceptive or abortifacient coverage because opting out does not cause, authorize, or otherwise facilitate such coverage.1 The Court’s opinion provides perhaps the most thorough explanation of the accommodation scheme’s nuanced mechanics that I have yet read. And for argument’s sake, I follow its holding as to the insured plaintiffs’ and Little Sisters plaintiffs’ RFRA claims.2 But I cannot join the Court’s holding as to the other self-insured plaintiffs’ RFRA claims, as that holding contradicts the Court’s own reasoning and thorough explanation of the accommodation scheme.

In reality, the accommodation scheme 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 selfinsured plaintiffs’ religious exercise. Moreover, less restrictive means exist to achieve the government’s contraceptive coverage goals here. I must therefore dissent in part.

The difference demonstrates a well-known weakness in the LSP case, which is how their insurance was structured. The LSP organization has less direct control over its insurance thanks to its use of a kind of co-op, and that was apparently enough for the 10th Circuit to rule that compliance with the HHS accommodation does not actually facilitate the use of contraceptives. Politically, this case is embarrassing for the Obama administration, but HHS has a somewhat stronger case here than with other religious organizations.

The Becket Fund had success in getting the Supreme Court to order a temporary injunction for LSP under the previous accommodation. It appears that they’ll have to try that path again to keep the nuns on the job providing hospice care as part of their exercise of religious liberty.