This post was originally published on Forbes May 27, 2015
Another Obamacare challenge stalled last week. The Court of the Appeals for the DC Circuit issued a ruling refusing a rehearing en banc on Priests for Life's challenge to the accommodation that the ACA makes for religious organizations in the matter of contraception coverage under the ACA. According to its Form 990, Priests For Life was:
Formed to identify, educate and support Roman Catholic clergy, from whom the intrinsic value of each human life is the focus of their pastoral ministry and to assist the role of teaching and preaching of the defense of human life from abortion and euthanasia in the context of a consistent ethic of life.
Or it could extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit employers with religious objections to the contraceptive mandate. That accommodation does not impinge on the plaintiffs’ religious beliefs that providing insurance coverage for the contraceptives at issue here violates their religion and it still serves HHS’s stated interests.
RFRA protects religious exercise. In no respect do we, nor could we, question Plaintiffs' sincere beliefs about what their faith permits and forbids of them. But we can and must decide which party is right about how the law works. We concluded that the regulation challenged in this case does not, as a matter of law or fact, give Plaintiffs' conduct the contraception-facilitating effect of which they complain. Indeed, it bears emphasis that the whole point of the challenged regulation is to scrupulously shield objecting religious nonprofits from any role in making contraception available to women. The accommodation is itself evidence of the fundamental commitment of this Nation to religious freedom that RFRA embodies. The regulation is, of course, properly subject to judicial scrutiny to verify that it comports with governing law, including Hobby Lobby. Because we conclude that it does, we believe that en banc review is not warranted in this case.
Nevertheless, though the government acknowledges that a primary goal of such organizations is to oppose the government's mission of increasing access to and use of contraception, it places them outside its grudging religious exemption and offers only one real choice—they can renounce their religious scruples overtly or in practical effect. If the government coopts their contractors and administrative structures to dispense advice, drugs, and services that contravene their religious views, in effect, it has written contraceptive care, including access to abortifacients, into Plaintiffs' employment contracts and student health care agreements. Commandeering is not accommodation, and, in this context, “seamlessness” is just shorthand for surrender.