Religious Nonprofits Tip Their Hands On The Real Goal In Birth Control Fight

September 23, 2014 6:00 a.m.

One month ago, the Obama administration tweaked its birth control mandate to address concerns of religious nonprofits who said filling out a form to opt out of paying for contraceptives would still make them complicit in sin.

Since then, various entities that sued have made clear they aren’t satisfied with the new accommodation, and will keep fighting for a complete exemption so that they can block off insurance coverage for contraceptives, which they view as sin, for their women employees.

In one prominent example, Ave Maria University filed a motion in a federal trial court in Florida earlier this month declaring the new rule to be unsatisfactory and sought an injunction before it takes effect on Nov. 1. The filing said that even though it no longer has to inform its insurer or third party administrator of its intentions, it remains opposed to notifying the administration of its desire to opt out because that would trigger a process by which the government requires insurers to pay for the contraception coverage, should the employee desire it.

“Ave Maria believes that any action ‘specifically intended to prevent procreation’—including contraception and sterilization—is morally wrong,” the Sept. 12 filing said. “Simply routing the form through HHS is a distinction without a difference. Indeed, HHS concedes that the augmented rule simply provides an ‘alternative’ that has the exact ‘same’ effect as before.”

The “effect” that it wants to avoid is to take part in any process that ends with their employees receiving insurance coverage for contraceptives like the morning-after pill or an IUD. The Becket Fund, a conservative legal group defending Ave Maria and about 40 like-minded nonprofits, tipped its hand as to the goal when speaking for its other client, Little Sisters of the Poor.

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In this photo taken on March 4, 2009, the new church on the Ave Maria University campus is seen in Immokalee, Fla. (AP Photo/Mitch Stacy)

“First, the government has refused to simply exempt the Little Sisters—even though it exempts churches and other religious organizations. That is wrong—the Little Sisters should receive the same exemption churches do,” wrote Becket, which also represented Hobby Lobby in the landmark case in which the Supreme Court said for-profit corporations cannot be forced to cover emergency contraceptives in their health plans. The motion repeatedly cited Hobby Lobby.

Houses of worship are exempt entirely from the mandate — their employees have no way to secure coverage for birth control in their employer health plans.

That is the treatment that religious nonprofits are seeking as the Obama administration seeks to balance religious liberty and women’s health concerns in the wake of its defeat at the Supreme Court in the Hobby Lobby ruling. What remains to be seen is whether the courts will agree that the expanded nonprofit accommodation also infringes on religious liberty. Days after the ruling, the justices granted an injunction to Wheaton College, another nonprofit objector.

Ian Milhiser, a constitutional law writer with the Center For American Progress, a progressive research and advocacy group, argued: “If the justices honor Ave Maria’s idiosyncratic objection, then it is unclear that the administration could design any accommodation that will survive contact with the Supreme Court.”

In the wake of Hobby Lobby, the Obama administration extended the tweaked nonprofit accommodation to objecting for-profit businesses. The Supreme Court ruling has given new life to a swath of lawsuits against birth control coverage.

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