Circuit Court Rejects Priests for Life Contraception Challenge

As if further proof were required that challenges to the contraceptive mandate in the Affordable Care Act are largely political stunts designed to push the “religious freedom” narrative, Priests for Life head Father Frank Pavone is now threatening to “defy” the mandate—for a handful of women who work in his Staten Island office.

A three-judge panel of the DC Circuit Court ruled Friday that PFL must comply with the opt-out mechanism of the ACA’s contraception mandate, which requires it to send a letter to the Department of Health and Human Services saying it objects to providing contraceptive coverage so HHS can notify the organization’s insurer that it needs to arrange and pay for the coverage.

“As we have said from the beginning, Priests for Life will not obey the HHS mandate,” Pavone said in a statement.

Supposedly the objection to the mandate—including the Hobby Lobby case—is that providing contraceptive coverage to female employees makes the employer complicit in the use of a drug or device to which they have moral objections. In the case of a large employer like Hobby Lobby or a Catholic hospital, it would of course be impossible to police either the use of contraception by female employees or their moral attitudes about it.

PFL, however, doesn’t suffer from that problem. According to a spokesperson, the organization has only 20 female employees. However, based on the organization’s most recently available 990 tax form and a staff picture tagged 2013, that estimate seems somewhat generous. PFL’s 990 from 2012 claimed a total of 41 employees; the recent staff picture appears to show 40, 13 of whom are women. Of these, it appears that about half are in the birth-control-needing years. So even figuring in PFL’s claim of 20 female employees, we’re talking about anywhere from 7 to 10 women who could potentially need contraception.

So PFL has taken a legal challenge one step shy of the U.S. Supreme Court to prevent fewer than a dozen women who choose to work on the staff of an organization that is vehemently anti-contraception from getting free birth control? Has Father Frank thought of just asking them to refrain from using contraception? Wouldn’t women who work for PFL be such excellent Catholics that they wouldn’t use birth control anyway?

But a statement from Janet Morana, executive director of PFL and a personal plaintiff in the case, seems to shed more light on the motivation behind the suit:

This decision praises the so-called benefits of contraception as if its well-documented negative health risks did not exist. Our objection to be any part of the government’s plan to make contraception more easily accessible is grounded not only in our respect for conscience and religion, but precisely in our regard for women and their health. The Pill, IUDs and sterilization devices like Essure are harming women every day.

So which is it? Is PFL claiming that its religious freedom is being violated by making it complicit, even remotely, in the third-party provision of contraception to its employees or is it objecting to being “any part of the government’s plan to make contraception more easily accessible” to all women because it believes contraception is evil?

The second claim is a PR stunt, not a religious liberty claim and the first claim sits on shaky legal ground, as the DC Circuit Court found. In its ruling, the court said that a “religious adherent’s distaste for what the law requires of a third party is not, in itself, a substantial burden … even if the third party’s conduct towards others offends the religious adherent’s sincere religious sensibilities.”

The court concluded that PFL’s rights are not violated under the Religious Freedom Restoration Act and it is still free to hate on birth control:

All Plaintiffs must do to opt out is express what they believe and seek what they want via a letter or two-page form. That bit of paperwork is more straightforward and minimal than many that are staples of nonprofit organizations’ compliance with law in the modern administrative state. Religious nonprofits that opt out are excused from playing any role in the provision of contraception services, and they remain free to condemn contraception in the clearest terms.

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