A federal appeals court said Wednesday it will not reconsider a pro-life ministry’s plea for relief from Obamacare’s birth control mandate, dealing a second blow in as many days to religious nonprofits who say the administration is ignoring its strongly held beliefs and signals from the Supreme Court.
The U.S. Circuit Court of Appeals for the District of Columbia said a majority of its judges decided not to rehear the lawsuit from Priests for Life, after a three-judge panel rejected its claims in November.
“The dispute we resolved is legal, not religious,” Judge Nina Pillard, an Obama appointee, wrote for the court.
The ministry wanted the court to revisit the case “en banc,” meaning a fuller slate of judges would hear them out.
The tactic had worked for Hobby Lobby, a crafts store chain that won its en banc hearing before the 10th Circuit and then won over a majority of the Supreme Court in June of last year. In that blockbuster ruling, the justices held that closely held corporations did not have to insure contraceptives that violated their religious or moral beliefs, notably morning-after pills they equate with abortion.
Earlier this week, the 7th U.S. Circuit Court of Appeals refused to grant a preliminary injunction that would shield the University of Notre Dame from the mandate.
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Religious nonprofits such as Priests for Life and Notre Dame complain that for now, they are treated more stringently than for-profit entities, who must do nothing to opt out of coverage as HHS rewrites regulations in line with “Hobby Lobby.”
Instead, they operate under an “accommodation” from the administration.
Religious nonprofits can either let their insurers or third-party administrators know that the institution objects to insuring the contraceptives, or they can write to the Health and Human Services Department to opt out. From there, insurers or third-party administrators will be responsible for managing and paying for coverage for affected employees.
Notre Dame had cited church teachings on both contraception (that any use is always immoral, as is paying for someone else’s use) and on complicity, arguing that filling out the form is an act that makes the school a party to someone else using contraception.
Judge Richard A. Posner said the university’s objections were not convincing, as Notre Dame simply must notify the government that the “ball is now in the government’s court.”
“Although Notre Dame is the final arbiter of its religious beliefs, it is for the courts to determine whether the law actually forces Notre Dame to act in a way that would violate those beliefs,” wrote Judge Posner, a Reagan appointee, joined in a concurring opinion by Judge David Hamilton, an Obama appointee.
The D.C. circuit used similar reasoning.
“The regulation allows Plaintiffs to continue to do just what they did before the ACA: notify their insurers of their sincere religious objection to contraception, and arrange for contraception to be excluded from the health insurance coverage they provide,” Judge Pillard wrote.
A trio of D.C. Circuit judges dissented with the court’s ruling, saying Priests for Life deserved a second hearing in light of Hobby Lobby’s holding that the government should refrain from violating someone’s religious beliefs, when possible.
“That is precisely what has happened here,” wrote Judge Brett Kavanaugh, an appointee of President George W. Bush.
• Tom Howell Jr. can be reached at thowell@washingtontimes.com.
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