Catholics make case against HHS contraception mandate

WASHINGTON — During oral arguments March 23 at the Supreme Court, attorneys on both sides of the Affordable Care Act's contraceptive requirement examined how the mandate either violates or strikes a balance with religious freedom.

Lawyers representing the seven groups of plaintiffs said the federal government's so-called accommodation for religious employers to arrange for a third party to provide contraceptive coverage in health plans was inconsistent because the government already had been able to provide churches an exemption from the requirement.

Paul Clement of the Washington-based Bancroft firm, who was one of two lawyers representing the plaintiffs, argued that religious freedom was at stake in the federal government's accommodation because even though the contraceptive coverage would be supplied by a third party, the religious employers would still be complicit in providing something that goes against their beliefs.

"The problem is we have to fill out a form, and the consequence of us filling out that form is we will be treated very differently from those other religious employers" that are exempt, he said.

U.S. Solicitor General Donald Beaton Verrilli Jr., in defending the federal government, argued that the government's accommodation struck the necessary balance required by the Religious Freedom Restoration Act of 1993.

RFRA says that if a law restricts the free exercise of religion guaranteed by the Constitution, there must be a compelling government interest to do so and it must not place an unreasonable burden on the religious exercise.

Justice Ruth Bader Ginsburg stressed that "no one doubts for a moment the sincerity" of the religious employers that object to providing contraceptive health care coverage, but she and other justices indicated that such a belief goes up against the compelling interest of the government's plan to provide health coverage for women, and the accommodation sought to find that balance.

Clement argued that an accommodation isn't "immune from RFRA analysis" and that the problem is giving an accommodation to some religious groups, but not all.

The Little Sisters of the Poor, Priests for Life and the dioceses of Pittsburgh and Erie, Pennsylvania, and the Archdiocese of Washington are among numerous plaintiffs around the country consolidated into Zubik v. Burwell.

The case is named for Pittsburgh Bishop David A. Zubik and Sylvia Mathews Burwell, the current secretary of the Department of Health and Human Services.

Noel Francisco of Jones Day, arguing on behalf of the dioceses who are plaintiffs, also noted that if the government is willing to address the contraceptive coverage in some ways for groups that meet the accommodation standard, than they should look to other ways for other religious groups to be exempt as well.

Under the Affordable Care Act of 2010, most religious and other employers are required to cover contraceptives, sterilization and abortifacients through employer-provided health insurance. Refusal to comply subjects nonexempt employers to heavy fines. 

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