Thickening Pill Plot: Non-Profit Challenges To Birth Control Mandate See Mixed Results In Courts

At the end of the day, this isn’t about religious freedom. It’s really about the Catholic hierarchy and fundamentalists trying to deny birth control to as many people as possible simply because they don’t think it’s morally right.

The waning days of 2013 were a mixed bag for supporters of the Affordable Care Act’s birth control mandate, as courts took conflicting stances on whether or not religious non-profits must comply with the new requirement, which went into effect yesterday.   

Many observers are focused on the fate of secular, for-profit corporations, which claim that the mandate violates their religious liberty rights, a matter the U.S. Supreme Court will decide this year.

Because some religious groups oppose all or certain forms of birth control, houses of worship and religious ministries are already exempt from the mandate and special accommodations have been made for religiously affiliated entities such as church-related colleges and hospitals.

As a result, all these groups have to do is tell the government that they don’t want to provide birth control and a third-party insurance company will take care of the rest, ensuring that even employees of religiously affiliated organizations will still have access to free birth control in their employer-provided health plans.

But even that accommodation, which protects religious freedom, isn’t enough for many. Some non-profits, like the Colorado chapter of Little Sisters of the Poor, an order of nuns who run nursing homes for the elderly, are also challenging the accommodation.

That brings us to the bad news. On New Year’s Eve, Supreme Court Justice Sonia Sotomayor granted a temporary exemption from the mandate for the Colorado nuns, though her action applies only to that group. This disappointing decision overturned one by the 10th U.S. Circuit Court of Appeals, which had denied the Little Sisters of the Poor’s request for a temporary reprieve from the mandate – and the fines incurred for anyone who doesn’t comply with it.

Sadly some courts have agreed with Sotomayor's reasoning. The U.S. Court of Appeals for the D.C. Circuit voted 2-1 Dec. 31 that the Roman Catholic Archbishop of Washington, D.C., and some of its various affiliates do not have to comply with the mandate or face any fines for that non-compliance until their appeal is complete.

The D.C. Circuit also approved a request for relief from the mandate by Priests for Life on Dec. 31, meaning the group does not have to comply with the birth control requirement while its challenge is ongoing.

The Rev. Frank Pavone, head of that group, had expressed bold defiance after a Dec. 19 decision against his challenge. In a statement he said that his organization will not comply with the mandate no matter what any court says and intends to “obey God rather than men.”

That attitude pretty well sums up why these cases are so important. Some religious zealots are bent on denying Americans access to birth control, and they won’t give in unless they have no alternative. Perhaps Pavone would rather pay the fines or shutter his organization than allow his employees to receive birth control from a third party. We may well find out the strength of his conviction if his appeal is ultimately denied.

And also on Dec. 31, the 6th U.S. Circuit Court of Appeals granted a temporary reprieve from the mandate to Catholic Charities and the Michigan Catholic Conference.  

But there was also some good news on this front. As my colleague Rob Boston wrote previously, the University of Notre Dame’s quest for temporary relief from the fines that come from not complying with the mandate was denied Dec. 20. And in an order on Dec. 31, the 7th U.S. Circuit Court of Appeals refused to block the mandate while Notre Dame makes its appeal.

These developments give us reason to be optimistic. As does this fact: Sotomayor’s action here is not the final word on this issue. She granted the stay but also asked the federal government to give its side of the matter. Just as the full Supreme Court will settle this mandate matter regarding for-profits, it’s safe to say the high court will also have to decide what to do with non-profits.

At the end of the day, this isn’t about religious freedom. It’s really about the Catholic hierarchy and fundamentalists trying to deny birth control to as many people as possible simply because they don’t think it’s morally right.

Religious liberty is a genuinely important tenant of our rights in the United States, but freedom of belief was never intended to be a weapon used to deny basic rights to others. Hopefully the Supreme Court will reach that conclusion this year and finally put a stop to these deceitful “religious liberty” claims by both secular for-profits and religious non-profits alike.