The 10th U.S. Circuit Court of Appeals, in Denver, found that opting out of an Affordable Care Act requirement to provide contraceptive coverage by use of an accommodation devised by the administration does not impose a “substantial burden” on a religious order.

Share story

WASHINGTON — A federal appeals court Tuesday handed the Obama administration another victory in its effort to guarantee coverage of contraceptives under the Affordable Care Act, rejecting a challenge by the Little Sisters of the Poor, an order of Roman Catholic nuns.

The 10th U.S. Circuit Court of Appeals, in Denver, found that the nuns could opt out of a requirement to provide contraceptive coverage under an “accommodation” devised by the administration. The rule does not impose a “substantial burden” on the nuns’ free exercise of religion, the court said.

Four other federal appeals courts — in the District of Columbia, Philadelphia, Chicago and New Orleans — have issued similar decisions upholding the accommodation, which is intended to address the concerns of nonprofit religious organizations that object to providing contraceptive coverage for women enrolled in their health plans.

In the decision Tuesday, Judge Scott Matheson Jr. called opting out of contraceptive coverage a routine administrative task, “as easy as obtaining a parade permit, filing a simple tax form or registering to vote.”

Matheson said that religious employers, under federal rules, could opt out by reporting their objections to their health-insurance companies and the administrators of their health plans, or to the secretary of health and human services.

The court rejected the Little Sisters’ assertion that this arrangement imposed a substantial burden in violation of the Religious Freedom Restoration Act of 1993.

When a religious organization opts out, by reporting its objections and providing information about its health plan, the government can use that information to try to arrange contraceptive coverage for its employees. The nuns found this arrangement abhorrent because, they said, it would make them “complicit” in the delivery of contraceptives.

Matheson, like judges on other appeals courts, rejected that argument.

“Plaintiffs do not ‘trigger’ or otherwise cause contraceptive coverage because federal law, not the act of opting out, entitles plan participants and beneficiaries to coverage,” the judge said. “Although plaintiffs allege the administrative tasks required to opt out of the mandate make them complicit in the overall delivery scheme, opting out instead relieves them from complicity.”

Moreover, Matheson said, “Congress has created a federal entitlement to contraceptive coverage and formulated a framework to guarantee that coverage will be provided even if plaintiffs decline to provide it.”

Sister Loraine Marie Maguire, a leader of the Little Sisters of the Poor, said she was dismayed by the decision.

“We simply cannot choose between our care for the elderly poor and our faith,” she said.

“For over 175 years, we have served the neediest in society with love and dignity. All we ask is to be able to continue our religious vocation free from government intrusion.”

Judge Monroe G. McKay joined Matheson’s opinion. Another judge, Bobby R. Baldock, agreed with parts of the opinion and dissented from others. He said the federal rule imposed a substantial burden on several plaintiffs that were their own insurers.