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A supplemental brief issued by petitioners in the controversial Zubik v. Burwell case (also known as the Little Sisters of the Poor case) is by no means proposing a compromise, but rather a a true exemption from the Obamacare mandate, according to a Catholic priest involved in the proceedings.

“Our position is that there is no room for moral compromise,” said Priests for Life National Director Fr. Frank Pavone, a named petitioner in the case, in a statement to CR following a Thursday conference call. “But rather that the administrative arrangement described in the petitioners' briefs submitted to the Supreme Court on April 12 and April 20 is acceptable to us."

Just a few days after the Supreme Court Heard oral arguments for the case, which focuses on whether or not a supposed “opt out” provision added to the Obamacare contraception mandate violates both the First Amendment and the 1993 Religious Freedom Restoration Act, both Health and Human Services and the 37 various petitioners in the case were ordered by the Supreme Court to file supplemental briefs regarding the possibility of finding a way for the law to comply with RFRA’s “least-restrictive-means” test, which some have referred to as a "viable compromise." 

“We have met and cleared the substantial burden hurdle,” explained Fr. Pavone in the call. This means that the parties petitioning the government have not only proven the sincerity of their beliefs, but that the regulatory structure of the mandate places an “undue burden” on them as religious practitioners. In turn, it forces the government to prove a “compelling interest” to impose that substantial burden, as is the final portion of RFRA’s three-part balancing test.

The petitioners were ordered by the court to determine for themselves “whether contraceptive coverage may be obtained through insurance companies in a way that does not require any involvement beyond petitions aside from their decision whether or not to provide health insurance without contraceptive coverage to their employees in the first place.” According to Fr. Pavone and his associates, that’s very possible.

“That’s what we’ve been saying from the very beginning,” said Robert Muse of the American Freedom Law Center, who is representing Priests for Life. “We have never objected to the fact the fact that these large insurance companies that we necessarily have to contract with to get these insurance plans may provide contraceptive coverage to any number of people. That has not been our objection. Our objection has been that the government has forced us to become intimately involved with providing that coverage.”

Muse, who is representing Priests for Life, explained in the call that very legal scenario proposed by the petitioners is how the various religious organizations functioned prior to the Obamacare mandates, in which religious employers would simply “check the box” that indicated that they didn’t want to provide coverage. In order to receive contraceptive coverage, women would simply need to either go to the insurance company or the government health exchange and activate it separately, a task which Muse likened to “activating a credit card.”

Nonetheless, the Obama Administration’s lawyers see this as problematic, arguing in its response to the brief that the “logistical and administrative burdens” created by such a system would run contrary to “the compelling interests served by the contraceptive-coverage requirement.”

Later in the call when pressed by a reporter, Muse conceded that the government’s stance is somewhat “hypocritical,” as its initial position was to argue that the “opt out” scheme was not an undue religious burden for the petitioners, but activating a separate insurance plan for contraception would be enough of an administrative hassle to overcome the protections for said burden.

“It is their view that some small administrative burden that might have to be imposed on someone who wants to get contraceptive coverage, no more a burden than signing up for healthcare in the first instance,” explains Muse. “At the end of the day, the government has a very dim view of religious liberty.”

“While we hold such coverage and such actions to be gravely immoral, the scenario described in the briefs does not involve the moral complicity to which we are objecting in this particular lawsuit,” said Fr. Pavone in the emailed statement.

In the call, Fr. Pavone stressed the importance of who made the distinction of religious belief, adding that an arrangement between the two parties would be only acceptable to Priests for Life and others “so long as we are truly exempt, and not just given another way to comply.”

“Where that line is drawn is decided by the religious objector and not the government."

Nate Madden is a Staff Writer for Conservative Review, focusing on religion and culture. He previously served as the Director of Policy Relations for the 21st Century Wilberforce Initiative. A John Jay Fellow, Citadel Parliamentary Fellow and National Journalism Center alumnus, Nate has previously written for World Magazine, The Washington Times, Catholic News Service, Patheos, Ethika Politika, and The Christian Post. Follow him @NateMadden_IV.

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