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Yes, Even Nuns Must Obey Obamacare's Contraception Mandate

By Casey C. Sullivan, Esq. on July 16, 2015 | Last updated on March 21, 2019

Obamacare's contraception mandate has been upheld, once again. The Affordable Care Act, which allows religious nonprofits to opt out of directly covering contraceptive services, does not substantially burden religious non-profits, the Tenth Circuit ruled on Tuesday.

Under the Affordable Care Act, if a religious non-profit objects to providing contraception coverage to their employees, they must notify their plan administrator of this objection, who then covers the contraception costs.

Colorado's Little Sisters of the Poor, an order of Catholic nuns devoted to serving the elderly, objected to this opt out process. Even sending in a letter triggered their participation in birth control in violation of their religious beliefs, the nuns argued. The Tenth Circuit, like all others to hear the argument, rejected the nuns' claims.

A Trigger Theory That Never Seems to Work

The Little Sisters are just one of a host of religious organizations who have objected to the ACA's contraception mandate. Those objections are all based on a similar trigger theory. Under the trigger theory, a religious employer's free practice of religion is burdened when they send in the single, one page letter noting required to opt out of the requirement to cover contraception directly.

That theory has been widely rejected. Circuit courts have unanimously found that no substantial burden is placed on employers through the opt out process. The Third, Fourth, Fifth, Sixth, Seventh, D.C. Circuits, now joined by the Tenth, have all rejected analogous arguments.

Let's be clear, the nuns' reasoning is weak, which is why it has been rejected by every appeals court to hear it. The Seventh Circuit treated it with something akin to open mockery. It's not because courts aren't sensitive to religious institutions' beliefs or sensibilities, it's because those sensibilities are already accommodated. Nuns, religious universities, catholic charities, and the like do not have to provide contraception to their employees, they simply have to send in a simple letter stating that they are opting out.

Of course, when those organizations opt out, their employees are still entitled to the protections of Obamacare and that includes coverage for contraception. That is, perhaps, the real basis of the objections -- that employees will have access to contraception regardless of the wishes of employers. But there's no legal reason that employees should be subject to the religious convictions of their employers. It's hard to imagine an employer's religious beliefs being trampled on every time their accountant or janitor takes birth control.

If the nuns want to avoid the contraception mandate now, they'll need the intervention of a higher power -- the Supreme Court.

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