Pro-life priests take Obamacare fight to court

WASHINGTON—Pro-life priests should not be forced to cooperate with a government scheme to expand contraceptive coverage, Priests for Life attorneys argued Thursday before the D.C. Circuit Court of Appeals.

“This is a battle of biblical proportions,” Fr. Frank Pavone, national director of Priests for Life, said after the arguments. “We will obey God rather than man.”

Priests for Life, a nonprofit with about 50 employees, sued the government last year over the contraceptive mandate in the Affordable Care Act, which requires employers to over health insurance coverage for contraceptive and abortifacient drugs. Priests for Life and other faith-based nonprofits have received preliminary injunctions against the mandate, but Thursday’s proceeding marked the first time an appeals court has heard the merits of one of those cases.

Pavone and Robert Muise, an American Freedom Law Center attorney who argued the case, both said they were pleased with the hearing. Muise made a simple plea during oral arguments before the three-judge panel: Under the Religious Freedom Restoration Act, the government has no right to force Priests for Life to go against its deeply held religious beliefs. “This goes right to the core of what they do,” Muise said. “It’s antithetical to their very mission of promoting the gospel of life.”

The government argued that anyone who has a religious objection to the mandate can opt out, but Muise said even the act of opting out is a violation of the Catholic doctrine of cooperation. The judges, who seemed skeptical that filling out a form could violate someone’s conscience, pressed Muise on why it would be a violation if the person did not have to pay for the coverage. Muise said money is not the issue and argued it isn’t the court’s role to determine Catholic doctrine, only to decide if the mandate places a “substantial burden” on the priests’ sincerely held belief. “The fact that Priests for Life finds it morally reprehensible—the court has to accept that,” Muise said.

The government essentially argued the priests shouldn’t feel that way, saying the regulations “bend over backwards to accommodate” those with religious objections. Judge Robert Wilkins asked why the government couldn’t simply require those who want coverage to opt in, which Priests for Life said would satisfy its moral objections.

After the hearing, Pavone said he found the judges to be “very even-handed. They pressed the government very, very hard.” Muise told me that was a surprise, since the original panel that was supposed to hear the case, which included Judge Janice Rogers Brown, was abruptly replaced in March with three liberal judges. Judge Judith Rogers is a Clinton appointee, and Wilkins and Judge Cornelia Pillard are both recent Obama appointees who were pushed through the Senate when Majority Leader Harry Reid, D-Nev., detonated the so-called “nuclear option” in November.

The judges likely will not issue a decision until after the U.S. Supreme Court rules on the cases of Hobby Lobby and Conestoga Wood Specialties, two for-profit business that appeared before the high court in March to argue they shouldn’t be forced to comply with the mandate.

Before and during Thursday’s hearing, pro-life groups and lawmakers rallied on the courthouse steps. Sen. Ted Cruz, R-Texas, and Reps. Diane Black (R-Tenn.), Chris Smith (R-N.J.), Scott Garrett (R-N.J.), Trent Franks (R-Ariz.), Paul Gosar (R-Ariz.), and Tim Huelskamp (R-Kan.) all participated in the event.

Black noted the fines for not complying with the contraceptive mandate would total $36,5000 per employee annually, but the fine for providing no insurance is only $2,000 per employee each year. “Only Obamacare could create a system that carries 18 times the fine for providing insurance coverage than not providing insurance coverage at all,” she said. “Increasing access to healthcare should never require forcing nonprofits like Priests for Life to choose between coverage and their conscience.”

Last year, Black filed the Health Care Conscience Rights Act, which would provide statutory protection for anyone who has a moral objection to the contraceptive mandate in the Affordable Care Act. The legislation has 194 cosponsors, including four Democrats.

On Thursday, the Family Research Council announced a new poll showing the majority of Americans oppose Obamacare’s contraceptive mandate.

“The HHS mandate is one of the most egregious violations of religious freedom in America that I have ever seen,” said Smith, who has been in Congress for 33 years. “Abortion is not healthcare.”