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Court seeks new ideas on mandate accommodation

WASHINGTON (BP) — The U.S. Supreme Court has made an uncommon request of religious nonprofits and the federal government in an effort to resolve a disagreement regarding the Obama administration’s abortion/contraception mandate.

The high court issued an order Tuesday (March 29) calling for new briefs from both sides in an effort to determine if workers may be able to obtain birth control coverage through their nonprofit employers’ insurance companies without violating the conscience rights of those employers. The justices directed both sides to address whether the coverage can be gained “in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.”

The justices’ action came less than a week after they heard oral arguments March 23 in the case, which involves an accommodation to the controversial mandate that many religious nonprofits contend violates their religious freedom by forcing complicity in providing potentially abortion-inducing drugs and devices.

GuideStone Financial Resources, the Southern Baptist Convention’s health and financial benefits entity, and the Roman Catholic order known as the Little Sisters of the Poor are among the ministries challenging the accommodation. GuideStone, and two of the ministries it serves, as well as three Baptist universities, are among the challengers to the accommodation.

The order is an “important development,” tweeted Russell Moore, president of the Southern Baptist Ethics & Religious Liberty Commission (ERLC).

Mark Rienzi, senior counsel of the Becket Fund for Religious Liberty, described the order as an “excellent development.”

“Clearly the Supreme Court understood the Sisters’ concern that the government’s current scheme forces them to violate their religion,” Rienzi said in a written release. “We look forward to offering alternatives that protect the Little Sisters’ religious liberty while allowing the government to meet its stated goals.”

The Becket Fund is representing the Little Sisters, GuideStone and other nonprofits.

David Cortman, senior counsel for Alliance Defending Freedom [ADF], said in a written statement, “There is an easy solution: The government can offer these services to women who want them without forcing Christian schools, nuns, and priests to abandon their belief that life is sacred. We will confer with our clients to determine a response to the Supreme Court’s request.”

ADF is representing some of the other challengers to the mandate.

The high court actually offered a possible solution, writing in the order: “The parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company — aware that petitioners are not providing certain contraceptive coverage on religious grounds — would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.”

Each side is to submit a single brief by April 12 and a reply brief by April 20.

The abortion/contraception mandate — a federal regulation issued to help implement the 2010 health-care reform law — requires employers to provide for their workers federally approved contraceptives, including ones with mechanisms that can potentially induce abortions. Those who refuse to abide by the requirement face fines in the millions of dollars.

The Department of Health and Human Services (HHS) provided an exemption to the mandate for churches and their auxiliaries but did not extend it to non-church-related, nonprofit organizations that object.

HHS issued an accommodation for religious nonprofits, but many of those ministries or institutions contend it still makes them complicit in covering contraceptives and potentially abortion-causing drugs. HHS requires them to provide written notification they meet the requirements for an accommodation, which forces the nonprofit’s insurer or a third-party administrator to provide contraceptive coverage.

The federally approved contraceptives for which coverage is required include the intrauterine device (IUD) and such drugs as Plan B, the “morning-after” pill. Both the IUD and “morning-after” pill possess post-fertilization mechanisms that potentially can cause abortions by preventing implantation of tiny embryos. The rule also covers “ella,” which — in a fashion similar to the abortion drug RU 486 — can even act after implantation to end the life of the child.

The ERLC and two other SBC entities — the International Mission Board and Southern Baptist Theological Seminary, as well as Southern’s president, R. Albert Mohler Jr. — filed a friend-of-the-court brief in January that urged the high court to rule the accommodation violates religious freedom.

The case is Zubik v. Burwell.

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