Tenth Circuit grants Catholic nuns stay in case over contraception mandate pending U.S. SC review

By Jessica Karmasek | Aug 24, 2015

DENVER (Legal Newsline) - A federal appeals court on Friday agreed to stay a case brought by an order of Catholic nuns over the contraception requirement of President Barack Obama’s federal health care law.

The U.S. Court of Appeals for the Tenth Circuit said in its two-page order that it would stay the issuance of the contraception coverage mandate pending the U.S. Supreme Court’s consideration of the certiorari petitions “currently on file.”

“If the petitions are granted, the stay of the mandate shall continue until the Supreme Court’s final disposition,” the Tenth Circuit wrote.

Late last month, the Denver-based Little Sisters of the Poor appealed a July 14 decision by the Tenth Circuit that states the Sisters must file for an exemption from the mandate.

The mandate, which was imposed under Obama’s health-care law, requires employers to offer insurance -- including contraception coverage -- or they may be fined.

However, the federal government now permits an exemption from religious employers, such as churches, hospitals and universities -- but they must apply for it.

The Tenth Circuit wrote in its July decision that filing for the exemption is “as easy as obtaining a parade permit, filing a simple tax for or registering to vote.”

The Sisters, which run about 30 nursing homes nationwide, argued in a brief filed with the appellate court that the mandate “continues to impose a substantial burden” on their religious exercise and the need to file for an exemption makes them complicit in the government’s “scheme.”

A three-judge panel of the Tenth Circuit disagreed, saying it believes the scheme “relieves [the Little Sisters] from complicity.”

Counsel for The Becket Fund for Religious Liberty, which is representing the Sisters, said the Tenth Circuit’s stay order will serve as a temporary safeguard.

“The federal government doesn’t need the Little Sisters or any other ministry to help it distribute abortion-inducing drugs and other contraceptives. Yet it not only insists on forcing them to participate in the delivery, it argues that their beliefs against participating are wrong and that government officials and judges can tell the Little Sisters what Catholic theology really requires,” said Mark Rienzi, senior counsel of The Becket Fund and lead attorney for the Sisters.

“That’s wrong, and it’s dangerous -- especially when those same government officials have disrespectfully compared the Sisters’ beliefs to ‘fighting an invisible dragon’ that can be vanquished with the ‘stroke of the [Sisters’] own pen.’”

The Sisters filed their petition for a writ of certiorari, or review, with the U.S. Supreme Court July 23.

“The government has lost every single time they have made these arguments before the Supreme Court -- including last year’s landmark Hobby Lobby case,” Rienzi said in filing the petition.

The June 2014 ruling allowed closely-held, for-profit corporations to be exempt from a law its owners religiously object to if there is a less restrictive means of furthering the law’s interest.

The Becket Fund and former Solicitor General Paul Clement -- the same legal team that won Burwell v. Hobby Lobby Stores -- filed the petition with the Supreme Court on behalf of the Little Sisters as well as the Christian Brothers Employee Benefit Trust, Christian Brothers Services, Reaching Souls International, Truett-McConnell College, and GuideStone Financial Resources of the Southern Baptist Convention.

Reaching Souls International is an evangelical Christian ministry dedicated to preaching the gospel and caring for orphans in Africa, Cuba and India. Truett-McConnell College is a Baptist college that trains students to share their faith worldwide. Christian Brothers Services, Christian Brothers Employee Benefit Trust, and GuideStone Financial Resources are the ministries that provide health-care coverage for the Sisters, Reaching Souls and Truett-McConnell.

Attorneys for the Sisters have said the Supreme Court is likely to consider its petition in late September or early October.

If the petition is granted, the case would be argued and decided before the end of the court’s term in June 2016.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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