D.C. Circuit Rejects Priests for Life Challenge to Obamacare Contraceptive Mandate

In a decision issued today, the U.S. Court of Appeals for the District of Columbia Circuit ruled against a legal challenge filed by Priests for Life and several allied Catholic organizations against the religious accommodation provided under the Patient Protection and Affordable Care Act's so-called contraceptive mandate. According to the legal challengers, although religious nonprofits are allowed to opt out of providing contraceptive coverage for their employees by submitting a form to the federal government, the submission of that form still "triggers" insurance providers to offer separate contraceptive coverage to the employees, thereby implicating the employers in practices that violate their religious views.

According to the D.C. Circuit, however, this opt-out procedure does not amount to a "substantial burden" on the religious liberty of these nonprofit organizations:

All Plaintiffs must do to opt out is express what they believe and seek what they want via a letter or two-page form. That bit of paperwork is more straightforward and minimal than many that are staples of nonprofit organizations' compliance with law in the modern administrative state. Religious nonprofits that opt out are excused from playing any role in the provision of contraception services, and they remain free to condemn contraception in the clearest terms.

The D.C. Circuit's opinion in Priests for Life v. U.S. Department of Health and Human Services is available here.

Comments

[Rich]

the submission of that form still "triggers" insurance providers to offer separate contraceptive coverage to the employees

TRIGGER ALERT!

[Notorious G.K.C.]

It's like compelling draftees to sign a form authorizing a specific person to be drafted in his place.

[UnCivilServant]

Well, in the Civil War, you could get out by providing a replacement...

[Notorious G.K.C.]

Or just cough up 300 bucks, if you had that kind of money lying around. But at least 300 bucks was often cheaper than hiring a substitute.

[Auric Demonocles]

Religious nonprofits that opt out are excused from playing any role in the provision of contraception services,

Sounds like they are begging the question.

[cavalier973]

OT:

He helped mankind land on a comet, but Dr Matt Taylor may end up being remembered for his risqu? sartorial judgement rather than his scientific acumen.
The space scientist broke down in tears today and apologised for wearing a gaudy shift which featured cartoon images of women wearing bondage gear and firing guns.

[cavalier973]

This is the sort of casual misogyny that stops women from entering certain scientific fields. They see a guy like that on TV and they don't feel welcome. They see a poster of greased up women in a colleague's office and they know they aren't respected. They hear comments about "bitches" while out at a bar with fellow science students, and they decide to change majors. And those are the women who actually make it that far. Those are the few who persevered even when they were discouraged from pursuing degrees in physics, chemistry, and math throughout high school. These are the women who forged on despite the fact that they were told by elementary school classmates and the media at large that girls who like science are nerdy and unattractive. This is the climate women who dream of working at NASA or the ESA come up against, every single day.

[Heroic Mulatto]

All this over a tacky Hawaiian-style shirt.

[WTF]

If the sight of a guy wearing a stupid shirt is enough to deter you from pursuing a career, then that career was not for you anyway, because that career obviously had little importance to you in the first place.

[Rich]

Well said.

[Heroic Mulatto]

I wish Grace Hopper would rise from the dead and choke a few of these bitches.

[UnCivilServant]

I'll get SoNAR on it.

[lap83]

Being offended doesn't pay well, but it's easier than memorizing things

[Bill Dalasio]

Fuck them!

These assholes are looking increasingly like the cadres of Mao's Cultural Revolution.

This guy's just done more for humanity's future than the lot of these SJW pieces of shit put together will ever hope to.

How about this. Dr. Taylor gets forbidden from wearing a Hawaiian shirt. And everyone of these assholes gets a burkha superglued to their sorry asses.

[cavalier973]

Vox Day (Theodore Beale) on the story:

That is the mentality that we're dealing with in #GamerGate. What is significant about #GamerGate is that it represents the first time that a male-dominated community has stood up and collectively said: FUCK OFF to the SJWs utilizing their conventional entryist tactics. The hardcore gamers of #GamerGate would rather be attacked and publicly portrayed as evil, outdated, sexist, racist, homophobic, transphobic, death threat-issuing, blood-drinking, serial-killing rapists than give another inch to the SJWs attempting to infiltrate and destroy the game industry.

[UnCivilServant]

The hardcore gamers of #GamerGate would rather be attacked and publicly portrayed as evil, outdated, sexist, racist, homophobic, transphobic, death threat-issuing, blood-drinking, serial-killing rapists than give another inch to the SJWs attempting to infiltrate and destroy the game industry.

I am not a Rapist.

The rest of it...

[Robert]

I finally had to look up SJW in Wiktionary. The only thing I could think of was single Jewish women.

[Warren's Strapon]

Damn. I was hoping he would stick to his guns.

[sarcasmic]

I don't get it. Seriously.

[John]

I don't either. What does "offer separate contraceptive coverage" mean? Are the groups paying for it or are they not? If they are not and the employees are buying their own separate policies, I don't see what the groups' complaint is. If they are still paying, then I don't see how the court can make the distinction.

[Notorious G.K.C.]

See below - the administration doesn't think it's enough for a religious nonprofit to "inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services."

Why not just accept the terms of the temporary Supreme Court injunction in the Little Sisters case - it satisfies all of the government's *legitimate* paperwork needs.

The fact that they want more, and are willing to impose crippling fines for *filing the wrong form,* is the part which should trigger suspicion.

[John]

I am not seeing what the legitimate purpose of the form is. If the employee wants contraception coverage, they are free to buy it on their own.

What seems to be happening here is that the government is telling the group that in addition to informing HHS, they have to also inform their insurance companies so the insurance companies can offer the policies.

This is a case involving a 1st Amendment right. That means the government must have a compelling interest and be acting in the least intrusive way possible. Where is the compelling government interest here? There isn't one.

This is nothing but the Democratic Hacks Harry Reid put on the Supreme Court reading the free exercise clause out of the Constitution. The quotes sentence reads like they are conducting an ordinary rational relationship analysis rather than the strict scrutiny they should be applying.

[Notorious G.K.C.]

"What seems to be happening here is that the government is telling the group that in addition to informing HHS, they have to also inform their insurance companies so the insurance companies can offer the policies."

There we go - and this goes beyond simply informing the govt that you have conscientious scruples about complying with their regulations.

If the government can administer *military conscription* with COs simply sending their exemption request to the government, likewise the government can administer a contraceptive mandate in the same way.

[John]

The decision is treating religious freedom like it is just another quirky preference rather than a right guaranteed by the BOR.

Just like the Progs would like to read the 2nd Amendment out of the BOR, they would like to read the free exercise clause out of it as well. That is all that is going on here. To the Progs "your right to bear arms, just means the right of the government to do it in your name. Now that religion has gotten in their way, they thing your right to free exercise means your right to think whatever you like as long as you don't say it or act on it in a way that gets in the way of a Prog policy.

Progs if given the power will limit and effectively read out every right protected by the BOR. It would be nice if people would understand this instead of judging every case by whether they like the plaintiff or not.

[Notorious G.K.C.]

SoCons were worried when Obama stopped talking about "freedom of religion" and spoke of "freedom of worship" instead - it seems these concerns were well-founded, since to Obama and his crew, religious freedom just means the right to go to a weekly worship service and then comply with whatever the government wants for the rest of the week.

[Notorious G.K.C.]

It's not the filing of a form they object to, it's the fact that the form authorizes a third party to provide contraceptives.

In contrast, the Supreme Court (at least for the moment) allowed the Little Sisters of the Poor to avoid the mandate so long as they "inform the Secretary of Health and Human Services in writing that they are non-profit
organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services."

http://www.becketfund.org/wp-c.....Order1.pdf

The very fact that the Obama administration *doesn't think such a notification is enough* should engender suspicion.

[prolefeed]

Religious nonprofits that opt out are excused from playing any role in the provision of contraception services

Well, no, by opting out they are "playing the role" of informing bureaucrats to do something that the opt-out-ers find immoral.

This decision would be like, under Stalin, requiring businesses to submit a form saying they are opting out of killing their kulaks, which then triggers Stalin sending soldiers to go to that business and kill the kulaks. "Allowing" the business to strongly condemn the subsequent killing would not absolve them of moral accountability.

[John]

That is a good analysis. And on top of that there isn't any legitimate government purpose here. If the employer isn't going to pay for it, what is the purpose of having the insurance company offer the separate coverage? Insurance companies want to sell policies and people who want birth control policies want to buy. So what compelling government interest is served by requiring the employer to inform the insurance companies? And oh buy the way, the insurance company already knows that the employees are not getting birth control policies and might want to buy separate ones. They are the ones that sold the employer the policy.

This decision is absurd. It totally ignores the need for a compelling government interest and just assumes that anything HHS demands must be compelling so what is the big deal about filling out a form. The big deal is that you shouldn't have to do shit without a compelling government reason to make you.

[Warren's Strapon]

This decision would be like, under Stalin, requiring businesses to submit a form saying they are opting out of killing their kulaks, which then triggers Stalin sending soldiers to go to that business and kill the kulaks. "Allowing" the business to strongly condemn the subsequent killing would not absolve them of moral accountability.

Agree and disagree. I see your point, but it's not like the businesses could have prevented Stalin's guys from coming in. I mean, I guess they could have, but just because they're trying to run a business shouldn't put them in the role of private security. And even if they tried, they'd lose. They're outnumbered. So they'd be dead, and so would the kulaks. So I would say that their hands are mostly clean from a moral standpoint.

Of course, that's from a human morality standpoint. I'm not a theist so I'm really not sure of the spiritual morality standpoint. Perhaps their God (I'll temporarily stipulate to his existence) really would expect them to martyr themselves, in which case they do have blood on their hands.

[Notorious G.K.C.]

OK, from p. 62 of the DC Circuit opinion:

"The government contends that its interests would be impaired if eligible organizations were entitled to exempt themselves from the contraceptive coverage requirement without notifying either HHS, *or their insurers or TPAs.*...Allowing eligible organizations to exempt themselves completely from the contraceptive coverage requirement, without so much as notifying *their plan* or HHS that they have done so, would undermine the government's interest in the breadth of the scheme established in the ACA. " [emphasis added]

If Priests for Life are like the Little Sisters of the Poor, they will be happy to notify HHS, the relevant government agency, just as a draftee has to notify his draft board if he's a conscientious objector. But just as many COs would object to sending a form to another man accepting him as a substitute and authorizing him to serve in the CO's place, likewise Priests for Life objects to writing their insurer to authorize them to cover contraceptives.

If the government wants to conscript the insurer in place of the objecting organization, let the government take on that responsibility, just as it takes on the responsibility of drafting someone else in place of a CO. Govt. shouldn't require a conscientious objector to *cooperate* with this process.

[Notorious G.K.C.]

pp. 62 and 64

[PRX]

"The government contends that its interests would be impaired if eligible organizations were entitled to exempt themselves from the contraceptive coverage requirement without notifying either HHS, *or their insurers or TPAs.*.

then the government is an idiot. their insurers were implicitly notified when they didn't purchase the bc coverage in the first place. besides, weren't ACA supporters the ones claiming not doing something is an activity.

[SugarFree]

I think priests should be using contraception, but I don't think I should have to pay for it.

[John]

A good number of them are gay, so it is really not much of an issue.

How about we just get the government out of the business of telling people to file forms explaining their religious beliefs?

Think about how creepy this whole scheme is. Take out the specific group and issues and just phrase generically.

A group has a moral objection to the government requiring them to buy a product, so they have to fill out of a form identifying themselves and their objection or face fines or jail for not self identifying as an objector.

Yeah, nothing creepy or authoritarian about that policy.

[Notorious G.K.C.]

Well, if it was just informing the government then, if the Little Sisters of the Poor are typical, they would file happily. Conscientious objectors generally have to notify the government of their scruples.

The problem is sending a form to private parties authorizing them to do what you have objections to doing. That strikes me as, what's the term, "material cooperation" with evil.

[Zeb]

How about we just get the government out of the business of telling people to file forms explaining their religious beliefs?

Yes. As I keep saying when freedom of religion comes up, carving out special exceptions for certain religious organizations is a terrible thing for religious freedom. If the mandates violate religious freedom, no one should be required to comply.

[Notorious G.K.C.]

As I keep mentioning when this comes up, the First Amendment *already* gives special treatment to religion.

If it hadn't been for Chief Justice Penaltax, this issue would never have come up, because properly interpreted, the Constitution doesn't allow the imposition of Obamacare on *anyone,* religious or not.

But if secular objectors lose their case, all the more reason to defend the religious objectors - violating the 10th Amendment isn't a good precedent for violating the 1st* as well.

*In my view, RFRA simply codifies the 1st Amendment, not adding any new principle

[Zeb]

My interpretation is that government determining what is or is not religion or sincere religious belief already violates freedom of religion. And freedom of religion coupled with equal protection means that any law that violates anyone's religious freedom should apply to no one.
Yes, the first amendment singles out religious practice as a protected thing. But I see that as meaning that religion can't be given special treatment. Rather , the general freedom guaranteed to everyone has to be such that free practice of religion is guaranteed. Otherwise you can't have true religious freedom because some judge gets to decide if your religious practice is legitimate and sincere or not.

And even if you do thing that the 1st Amendment means special exceptions for religion, if a law isn't written with those exceptions built in, the whole law should be stuck down.

[Notorious G.K.C.]

It's hardly a perfect balance, but in fact the govt has experience evaluating the sincerity religious objectors and weighing their scruples against the (alleged) interests of the government.

It took a long struggle, but sincere COs (even outside the traditional peace churches) got the right to avoid military service.

The Amish got the right to have special consideration re the payroll tax (which was being sold as insurance, which the Amish object to).

These little victories are worth celebrating, even if the laws themselves weren't abolished (though the draft law was).

[John]

What GKC said. Religion is special because it is specifically mentioned in the BOR and protected. Your religion is not the same as your choice in NFL team. You really do get to opt out and be treated differently because of it. People may not like that but that is what the BOR says.

[Zeb]

Who is to say that NFL fandom isn't religious practice?

Religion is specially singled out. But I'm saying that no law should exist that burdens anyone's right to free exercise. If a law violates anyone's constitutional rights, it is invalid and has to go. You can't just selectively enforce it based on religion. Religious freedom can't exist except as part of general freedom that is guaranteed for everyone.

[Notorious G.K.C.]

Largely I agree, in the sense the the Constitution contemplates a broad array of freedoms, of which freedom of religion is only one.

But in today's statist climate, most of the Bill of Rights gets ignored or set aside by the courts, and for some reason only the 1st Amendment still gets protected. I refer not only to freedom of religion, but freedom of speech and press, and freedom of assembly.

By strict logic, the fact that the government violates the freedom of business in general should mean it should censor *Reason* and other publications as well, but fortunately, the courts haven't been so consistent, and they allow newspapers, Web sites and magazines to dissent from government policy. It's not *consistent* to violate the rights of guitar makers and restaurants while simultaneously protecting the media, but let's take what we can get.

And if the media should feel free to fight for its First Amendment rights, so should the religious community.

[Zeb]

As a practical matter, I more or less agree.

But I also have strong objections to special treatment for newspapers and other journalistic enterprises. Every person or group should be allowed to publish anything they want to.

[Notorious G.K.C.]

Indeed, and in theory the courts agree. What they're less likely to agree about is the right of someone who isn't in the talking/writing business to operate their business - eg, as a store owner or hair braider.

[Warren's Strapon]

I agree. Letting the government define what is and isn't religion makes as much sense as letting them decide what is and isn't "the press"--which is to say, no sense at all.

[cavalier973]

Priests are supposed to be using Abstinence, but they can't get the government to pay for it, so they're being all jaded and stuff.

[Notorious G.K.C.]

The Little Sisters of the Poor aren't priests.

[cavalier973]

It was in response to:

SugarFree|11.14.14 @ 11:38AM|#

I think priests should be using contraception, but I don't think I should have to pay for it.

[Notorious G.K.C.]

Got it - I should have replied to SF.

Hi there, SF!

[Zeb]

But Priest for Life presumably are.

[Notorious G.K.C.]

I got it - but in the same issues come up in the Little Sisters of the Poor case, the challenges filed by Catholic and Protestant universities, and other non-priestly situations.

[Zeb]

This whole discussion is moving deck chairs on the Titanic. If a law violates religious freedom, then the law shouldn't apply to anyone. If a law violates the Constitution, then it is invalid, period. These administrative tricks are bullshit. And as I like to point out, making special exceptions like this will just lead to having a list of officially government approved religions and "legitimate" religious beliefs. Which seems to be to be rather contrary to any try religious freedom. If religious beliefs are subject to judicial scrutiny, then there is no freedom of religion.

[Notorious G.K.C.]

This would all be fine in a world where the government kept to its basic functions and didn't meddle in everything under the sun. In such a world, religious exemption issues would rarely arise (there would still be questions of conscientious objections to military service and to giving certain kinds of testimony).

But we aren't in that world, and I don't believe in deferring the enforcement of religious freedom until the government abandons its grandiose secular ambitions - on the contrary, there's all the more reason to protect the First Amendment against an overambitious government, since the very existence of the First Amendment indicates that the Constitution values religion as such.

[Zeb]

Sure, I can understand that. But what I am arguing is that cases like this carving out specific exemptions is in fact bad for religious freedom generally, even if it is good for specific organizations. I don't think that these orgs should be forced to provide contraception, or to file the right forms so that insurers will offer it to people. But it is also a very dangerous precedent for the reasons I have given.
I don't think any of the likely outcomes are good at all.

[Notorious G.K.C.]

I've mentioned some examples of religious accomodation above.

I'm not saying it's philosophically perfect, but I think it's better to (say) leave the Amish alone, than to rigidly enforce, respectively, the payroll tax and confiscate their farms and buggies.

[Notorious G.K.C.]

And I don't think these examples, which go back to the 18th century (or 16th century) militia laws and the laws against violating the confessional in court, haven't led to dilution of religious freedom.

[Zeb]

They may not contribute to dilution of religious freedom, but they do contribute to a system that favors the freedom of established religions over other religious belief and which resists more complete guarantees of religious freedom.

That the government can distinguish between the Catholic Church and the Church of Not Providing Health Insurance to Employees that I just made up is a major imposition on religious freedom. If I say it's my religion, it's my religion, I shouldn't have to prove it in court.

[Zeb]

And it is worth noting that I'm not opposed to a decision giving exceptions to these religious groups. I think that is marginally better than the alternative. I'm just saying that I think that all likely outcomes are pretty bad. I'm not arguing the case, so I get to say what I think is right, not what will win in court.

[Notorious G.K.C.]

OK, and I actually think the religious objectors would *want* to win a broader victory which benefits secular groups. A Quaker who disbelieves in war would be *happy* to see the draft abolished for everyone. An order of nuns who object to artificial birth control would be *happy* if Ocare as a whole would be struck down.

It's not as if the Little Sisters of the Poor sit around and say, "you know, I love how the government forces secular businesses to provide birth control, I just wish they'd exempt *us* because we're special!"

[Zeb]

I agree on the examples you give. Though I think that some religious orgs might not like the full legal implications of my ideal solution, which would be pretty much instant minarchy.

[OldMexican]

According to the D.C. Circuit, however, this opt-out procedure does not amount to a "substantial burden" on the religious liberty of these nonprofit organizations

Because that is what the 1st Amendment says: "Congress shall make no law that imposes a substantial burden on the religious liberty of people..."

It says it right there, between the x and the z of the fourth paragraph.

[wef]

Given the sorry state of what is acceptable regulatory buttinski-ism - and what is commonly thought of as a permissible level of government intrusion generally - it is not difficult at all to defend this court decision as at least consistent. Unless there is some hidden subtlety here, the plaintiffs - who are votaries of an organization quite happy with the state enforcing plenty of victimless crimes - are essentially arguing for yet another special privilege due to certain superstitious beliefs. They already have a legislative carve-out in the form of a "substantial-burden" privilege attached to claims of supernatural beliefs. Maybe, maybe, maybe the religious angle is the fatal chink in the healthfascist legal armor, but doubtful. All this contraceptive drama queen stuff just comes across as special pleading. Wouldn't the plaintiffs be happy with the regulatory burden falling on everyone else, just as long as they have their special niche protected?

[Notorious G.K.C.]

"the plaintiffs - who are votaries of an organization quite happy with the state enforcing plenty of victimless crimes"

Well, so are Commies and socialists, yet many key victories for liberty were in cases affecting the liberties of Commies and socialists.

Why should Priests for Life and the Little Sisters of the Poor be any less deserving, simply because they may be less than pure from a libertarian angle?

[wef]

But the court did not say that the religious are less deserving - they just don't get to special-plead and claim without government and court scrutiny the "substantial burden" privilege carve-out for religion. The priests made their case and the court said, what? -yeah, the Congress gave you your opt-out privilege, but there is no substantial burden to the paperwork, and, no, you just can't claim burdens related to "triggering" something you don't like, because the government has its own interests. From the perspective of secular statists, it's hard to argue with the court.

[Notorious G.K.C.]

The question is certainly debatable, as indicated by the stay the U.S. Supreme Court gave the Little Sisters of the Poor on precisely the same issue.

[Ken Shultz]

This should be an excellent opportunity for Republicans to score some points with Catholics--especially Irish and Italian Catholics in the north and northeast.

Catholics from Latin America don't tend to care as much about various points of theology, but respect for the Catholic church, generally, should help Republicans out with that constituency, too.

If the Republicans introduced a bill to reform ObamaCare on this one point, I'm sure the Democrats would be tempted to go all Defcon 1 on the Republicans and their war on women, but I think the midterms just showed that rhetoric doesn't work as well if the Republicans don't take the bait.

Reform ObamaCare so that Catholics can practice their religion with or without permission from Obama's healthcare bureaucracy, and you're going to score points with Catholic swing voters.

Republicans should only hope that the Democrats will denounce the Catholic Church for being Catholic, or that the Democrats will denounce them for being respectful of the Catholic Church. You can't buy that kind of advertising.

[Notorious G.K.C.]

I would love to see that scenario play out as you say, though the last time the Reps played the Obamacare religious-freedom card, in 2012, they got Sandra Fluked and a majority of Catholics still went for Obama. But a majority of Catholics who meet their Sunday obligations went R, indicating that D support comes from the C&E (Christmas and Easter) Catholics.

[Ken Shultz]

Yeah, and the Republicans would get Sandra Fluked again--the question is whether they take the bait.

I've mentioned before that both parties tend to strive to become the caricature that their opponents make them out to be. I'm not convinced it was what the Democrats said about the Republicans in regards to Sandra Fluke that hurt them so much--it's what Republicans said about Sandra Fluke that really hurt the Republicans.

Just because the Democrats start waving a slut-shaming flag in front of the Republicans doesn't mean the Republicans have to go charging at it like a bull. Let the Democrats wave that flag around--if the Republicans don't charge at it, the Democrats' charge will ring hollow with a significant number of Catholics.

...especially those Catholics who don't particularly think of supporting the Catholic Church as slut-shaming or waging a war against women. If the Republicans just shut the fuck up in that situation, it makes the Democrats look like they're going after Catholics--which is exactly what the Republicans want.

Also, a lot of that war on women stuff resonated a lot better before the midterms, when people saw Republicans raging against ObamaCare as an attack on Obama himself. Right about now, people like Harry Reid (and a lot of other Democrats) don't really care if you go after the president personally. They're trying to hold themselves back from going after the president personally themselves.

[Notorious G.K.C.]

I would love to see the Reps hold a hearing with a panel of nuns and female college officials testify about the impact of the mandate on their institutions. No male clergy or theologians, just women whose institutions are harmed.

Then drag in some male HHS officials and make them squirm.

[Notorious G.K.C.]

Have the female R politicians take the lead in questioning - if the Democrats absent themselves, ask indignantly, "where are the Democratic women?"

[Notorious G.K.C.]

If you want male witnesses, how about some old Quaker CO who did alternative service helping the poor, explaining how he would have resisted the draft if he had been obliged to authorize some substitute to serve on his behalf.

[Notorious G.K.C.]

Hell, I'm borderline autistic and I have a better idea of how the Rs should operate then they have.

[Notorious G.K.C.]

I mean heck, not hell.

[Robert]

"Insuring against" such a routine thing as contraception is ridiculous to begin w.

[Robert]

They could as easily have wangled dental benefits into the ACA. Or baby formula. Or disposable diapers. Or menstrual pads or tampons. Or hand soap.

[Robert]

If they really wanted a social-health-insurance program, it'd cover only nonroutine care, and it'd stop at age 60.

[ritchbumpsyrg]

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