Little Sisters of the Poor, a missions-based Catholic organization strongly opposed to ObamaCare’s contraception requirement, suffered a legal setback on Tuesday after the U.S. Court of Appeals for the Tenth Circuit refused to grant it an exemption. The court ruled, “Although we recognize and respect the sincerity of Plaintiff’s beliefs and arguments, we conclude the accommodation scheme relieves Plaintiffs of their obligations under the Mandate and does not substantially burden their religious exercise under RFRA [Religious Freedom Restoration Act] or infringe upon their First Amendment rights.” What’s baffling is how badly the opinion clashes with the Supreme Court’s Burwell v. Hobby Lobby ruling last year. In that case, the Court found that “HHS and the principal dissent [are] in effect tell[ing] the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step.” You can blame the Obama administration’s craftiness for this week’s result. According to The Wall Street Journal, “Under alternative arrangements finalized by the Obama administration last week, employers who have [moral] objections must tell their insurance company or the federal government. The insurance company then takes over responsibility for providing the coverage to employees who want it.”
Here’s the problem, as explained by University of Tennessee professor Glenn Reynolds: “The Tenth Circuit’s contortions to reach this result are remarkable. The court seems to have no recognition of the fact that the Obama Administration’s regulatory ‘accommodation’ is a sleight of hand, allowing the insurer/third party administrator to move the contraceptive coverage ‘off the books’ and ‘pay’ for it themselves. But of course burdening the insurer/administrator in this fashion is merely a shell game, and the cost of contraceptive coverage is ultimately borne by the employer and individual beneficiaries. The coverage is not magically free, no matter how hard the Obama Administration tries to make it ‘look’ free via regulation.” This case may end up in the Supreme Court — something it could have prevented had its ruling in Hobby Lobby not been so limited.