10th Circuit to Little Sisters of the Poor: Comply with contraception mandate

posted at 2:01 pm on July 14, 2015 by Ed Morrissey

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.


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Comments

Stop arguing with Tlaloc.

What people like Tlaloc never understand is that some people actually, earnestly, have beliefs in things bigger than themselves. The Tlalocs of the world come from a very sad place where there is no right or wrong, only shifting shadows of public opinion, and none of it matters anyway. They say all kinds of things to try and push public opinion in their direction of the day, but they don’t truly believe a word they say. What they said yesterday may vary wildly from what they say today and may be the opposite of what they say tomorrow. And they project that same basic dishonestly out to everyone.

ISIS truly believes what they say, which is why they will die for it. So do the Little Sisters of the Poor. The Tlalocs of the world have been pushing and pushing and pushing, confident in the knowledge that no truly educated, smart person actually believes anything for reals. They will be shocked when they can push no further.

For many of us, that time is now. We can no longer make accomodations, because we are not Tlalocs.

JoseQuinones on July 15, 2015 at 12:15 PM

Lawyer…akin to law-ier or: Law + one whose profession is.

Who would have thought to get “someone whose profession is law”–a law professional –to dispute a law, if Tlaloc would not have provided that sharp understanding?

My brain would hurt to provide the level of understanding that Tlaloc can provide for us on a daily basis.

His argument is basically, the government can change the word “compensation” to suit its ideology. And once it has defined compensation, if you do not provide that compensation, you run afoul of the law and you either comply or….darn I forgot what the other thing was.

Axeman on July 15, 2015 at 12:15 PM

Stop arguing with Tlaloc.

What people like Tlaloc never understand is that some people actually, earnestly, have beliefs in things bigger than themselves. The Tlalocs of the world come from a very sad place where there is no right or wrong, only shifting shadows of public opinion, and none of it matters anyway. They say all kinds of things to try and push public opinion in their direction of the day, but they don’t truly believe a word they say. What they said yesterday may vary wildly from what they say today and may be the opposite of what they say tomorrow. And they project that same basic dishonestly out to everyone.

You’ve basically defined every liberal I’ve ever bothered to track.

I don’t think Tlaloc really understands the concept of people believing in something he doesn’t. If the government “settles” definitions for us, that’s what that thing is. If the government defined compensation as monetary compensation + animal floaties, then that’s what “compensation” is.

You’d better pony up the floaty or….–there was something somebody of GREAT insight said about what you do there…it was just too high level for me to grasp…something about some sort of professional–or professor? There was something you could do…which would increase the chance that you wouldn’t just have to fall in line because the government says so. Whatever that was—you have to do that.

Axeman on July 15, 2015 at 12:24 PM

“Yield or die.”

It may not have been any different when medieval “nobles” said it, but at least it sounded better. And at least they had the stones to actually say what they meant.

Leftists are like jackals, only without the former’s basic honesty of purpose.

GrumpyOldFart on July 15, 2015 at 1:38 PM

Funny how you never see any court cases involving Islamic bakeries, deli’s, or mosques…

olesparkie on July 15, 2015 at 2:35 PM

Well, it seems to me that the crux of Tialoc’s argument is this: religious freedoms must be set aside because the law (or Courts) say that they must be set aside. Therefore, we must all kneel down at the altar of the law of the land and set aside our personal beliefs.

My question for Tialoc, then, would be this: before gay marriage was enacted as law, in fact, while marriage was legally defined as being between a man and a woman, was he this adamant that gays needed to set aside their own personally held beliefs because the law told them to? Somehow I think not.

OrbeaRider66 on July 15, 2015 at 2:35 PM

GrumpyOldFart on July 15, 2015 at 1:38 PM

Oops. Latter, not former.

GrumpyOldFart on July 15, 2015 at 2:55 PM

Looks like the 9th circus is being joined by the 10th circus. If Dims keep appointing lawless judges they may get to have all the appeals courts turned into lawless, fascist circuses like these two gangs of deranged useful idiots.

russedav on July 15, 2015 at 3:30 PM

“Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.”

CS Lewis seemed to understand Liberalism quite well.

OpportunityCost on July 15, 2015 at 5:52 PM

You are right, Jose. That does help me to understand people like him. It’s as if they have an inability to see the color green, or something.

Alana on July 15, 2015 at 7:41 PM

Remember, before they hated you, they hated Me.

unclesmrgol on July 16, 2015 at 12:21 AM