Did Religious Groups Cave on the Birth Control Coverage Mandate?

Religious non-profits in the U.S. Supreme Court case involving The Little Sisters of the Poor have said "yes" to the court in a supplemental brief, telling the justices there is a solution to the case that pits Obamacare against the nuns and other religious ministries.

In an unusual move, the court last month requested additional information from both sides in the case.

The justices wanted them to provide more arguments about whether the government could come up with ways to provide contraceptives without involving religious non-profits and their health plans.

The court also wanted to know if, when it comes to non-profits who purchase traditional insurance plans, the government could hire the same insurance company to offer the drugs.

"These non-profits said 'yes' to the Supreme Court, just as they have been saying 'yes' to the federal government for many years," said Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty, which represents the Little Sisters of the Poor. "At some point, the government has to learn how to take yes for an answer."

"The religious objection has always been only to those methods of distribution that forced the non-profits and their plans to participate. The government should move on from this unnecessary fight, and go provide these services some other way that doesn't use nuns," Rienzi continued.

According to a news release from the Becket Fund, the government already exempts one in three Americans from the Obamacare contraceptive mandate. In addition, large corporations like Exxon and Pepsi Bottling are exempted. The Becket Fund says a total of 100 million Americans do not have to comply with the mandate.

"Yet the government threatens us with fines of $70 million per year if we don't comply," said Sister Loraine Marie Clare, Mother Provincial for the Little Sisters of the Poor.

But in blogs for Religion News Service, Mark Silk says the religious non-profits "caved" and are "blowing smoke."

"Up till now, the nonprofits have insisted again and again that they cannot be party to any arrangement that "triggers" the contraception coverage by their insurer," Silk wrote. "That, they've said, would unacceptably infringe on their religious liberty by making them complicit in the provision of something they consider evil."

"But under the process they have now accepted, the insurance company is no less triggered. It will be obliged to provide the coverage," he said.

Rienzi disagrees.

"I think there's always been a misconception about what the petitioners were claiming. In other words, the caricature of the religious groups' belief, sometimes indulged by the government's allies, sometimes indulged by lower court judges, but the caricature was that, 'Oh, these religious people will never be satisfied,'" he said at a news conference.

"So if anybody gets contraceptives, right, that they have pretended that the goal has always been to stand in front of the pharmacy and bar the door. That's just a cartoon version of what the religious petitioners have claimed. It's never been the claim. The claim has always been, 'I need to be separate from this,'" he continued.

"The religious liberty claim was always straightforward. It was, 'Take me out of the process.' The court is saying, 'If we really take you out of the process, are you okay?' The answer to that is 'yes;' it's not a change in position at all. It's the same position we've been saying since before this mandate existed, honestly," Rienzi said.

"The Supreme Court asked if any way exists to offer contraceptive and abortifacient coverage without making Christian schools, nuns, and priests complicit in providing them," said Gregory S. Baylor, Alliance Defending Freedom senior counsel. "The answer we gave the court today is yes. There are many ways in which all women could receive cost-free contraceptive coverage that wouldn't require involvement by religious non-profit groups."

"The government could offer separate avenues for contraception coverage that do not... hijack the non-profits' insurance plans. The Supreme Court should rule in favor of the non-profits in light of the numerous means the government has to achieve its objectives without violating anyone's religious liberty," he continued.