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Legal Challenges to Contraception Mandate Now Focus on Compromise for Religiously Affiliated Employers

Jessica Mason Pieklo

A host of new lawsuits, including a class-action challenge, look to take down the Obama administration's compromise rule for religiously affiliated nonprofits.

A handful of challenges to the contraception benefit in Obamacare by secular, for-profit businesses have landing before the Supreme Court. Now conservatives are re-focusing their energies on the mandate’s exemption for religious employers, filing a host of new lawsuits against the Obama administration’s final compromise rule for religiously affiliated nonprofits.

On Tuesday, the Becket Fund for Religious Liberty filed a lawsuit in federal district court in Denver on behalf of the Little Sisters of the Poor, a Catholic religious order that operates assisted living facilities. According to the allegations in the lawsuit, the order does not qualify for the religious exemption, which means that it would have to provide insurance coverage for contraception to its employees. But the order does qualify as a religiously affiliated nonprofit and falls under the compromise offered by the Obama administration. For those groups, contraception is covered separately with insurers picking up the upfront costs of those policies. That means that religiously affiliated nonprofits don’t bear any cost for coverage, nor do they have to deal with administering plans that provide such coverage.

But according to the Becket Fund, which hopes to bring the suit as a class action on behalf of hundreds of Catholic nonprofits, that compromise does not go far enough. “The Sisters should obviously be exempted as ‘religious employers,’ but the government has refused to expand its definition,” said Mark Rienzi, Becket Fund senior counsel and Little Sisters lead counsel. “These women just want to take care of the elderly poor without being forced to violate the faith that animates their work. The money they collect should be used to care for the poor like it always has—and not to pay the IRS.”

While the complaint puts forward nearly identical claims as the others challenging the mandate, Little Sisters’ legal challenge is unique and is the first to try and gain class-action status.

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Meanwhile, the Alliance Defending Freedom (ADF) filed a suit challenging the birth control benefit on behalf of four Oklahoma Christian universities: Southern Nazarene University, Oklahoma Wesleyan University, Oklahoma Baptist University, and Mid-America Christian University. The lawsuit, filed in the U.S. District Court for the Western District of Oklahoma argues that the mandate violates the Religious Freedom Restoration Act as well as the First and Fifth amendments to the U.S. Constitution.

According to the suit, the final version of the regulations “conscripts the Universities into the government’s scheme” by “forcing them to obtain an insurer or third-party claims administrator” and “submit a form that specifically causes that insurer or third-party administrator to arrange payment for the objectionable drugs, so that such coverage will apply to the Universities’ own employees as a direct consequence of their employment with the Universities and of their participation in the health insurance benefits the Universities provide them.” In other words, the very fact that employers have to provide coverage should be found unconstitutional, the colleges claim.

In a statement released with the filing of the suit, Oklahoma Wesleyan University President Everett Piper said the school joined the lawsuit because “[w]e believe all women should have the religious freedom to not pay for a drug they find immoral and will never use. We are filing suit because we believe God is God and the government is not.”

Under the Obama administration’s compromise, insurance companies pick up the expense of contraception coverage for religiously affiliated nonprofits.

“Christian colleges should remain free to operate according to the beliefs that define them,” said ADF Senior Counsel Gregory S. Baylor in a statement in connection with the suit. “This mandate leaves religious employers with no real choice: you must either comply and abandon your religious freedom and conscience, or resist and be taxed for your faith. If religious convictions mean nothing in this context, there is no stopping what the government can ultimately do.”

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