In the latest religious challenge to the federal healthcare law, faith-based organizations that object to covering birth control in their employee health plans argued in federal appeals court Monday that the government hasn't gone far enough to ensure they don't have to violate their beliefs.
Plaintiffs including a group of Colorado nuns and four Christian colleges in Oklahoma argued in the 10th U.S. Circuit Court of Appeals in Denver that a federal exemption for groups that oppose contraceptives, including the morning-after pill, violates their beliefs.
The groups don't have to cover such contraceptives, as most insurers must. But they have to tell the government they object on religious grounds in order to get an exemption. They argued Monday that because they must sign away coverage to another party, the exemption makes them complicit in providing contraceptives.
"It is morally problematic" to sign the forms, argued Greg Baylor, lawyer for Southern Nazarene University in Bethany, Oklahoma.
"There are plenty of other ways the government could put (emergency contraception) in the hands of the people without us," Baylor said.
But a lawyer for the government insisted the exemptions aren't a significant burden on the groups' exercise of religion.
Adam Jed of the Department of Justice argued that the government has done enough to accommodate religious exceptions to the birth-control mandate. He said that not requiring some sort of action by the groups would force the government to act as a "detective agency" to determine why any employer is not covering the contraceptives.
"We disagree that the act of opting out constitutes a substantial burden on their religious belief," Jed said.
Even opting out violates those beliefs, the groups said.
"You can't say, sister, you should really sign that form because it's not really a big deal," said Mark Rienzi of the Becket Fund for Religious Liberty, who argued for the Denver nuns.
The three judges concentrated their questions on whether the opt-out forms amount to a "substantial burden."
Judge Bobby Baldock asked why the exemption process burdens religious groups when the form essentially tells the government, "You can go pound sand because we don't condone it, we don't agree with it."
Baldock seemed perplexed about why the government needs any form at all from religious objectors.
"You already know that the (nuns) raised their hands and said, 'We're not going to do this,'" Baldock said.
The judges didn't indicate when they might rule.
The same court ruled last year that for-profit companies can join the exempted religious organizations and not provide contraceptive coverage. The U.S. Supreme Court later agreed with the 10th Circuit in the case brought by the Hobby Lobby arts-and-crafts chain.
The birth-control rule has been among the most divisive aspects of the health care overhaul. Some advocates for women praise the mandate.
Under the healthcare law, most health insurance plans have to cover all Food and Drug Administration-approved contraceptives as preventive care for women, free of cost to the patient.
Churches and other houses of worship are exempt from the birth control requirement, but affiliated institutions that serve the general public are not. That includes charitable organizations, universities and hospitals.
In addition to the Denver nuns and Southern Nazarene University, the 10th Circuit heard challenges from Oklahoma Baptist University, Mid-America University and Oklahoma Wesleyan University. Also challenging the waiver process was a group called Reaching Souls International, an evangelist Oklahoma organization that does Christian mission work overseas.
