By Catholic News Service • Posted December 9, 2014

DENVER (CNS) — The Little Sisters of the Poor aren’t seeking special privileges — they just want the same exemption from the federal contraceptive mandate offered to others, the order’s mother provincial said Dec. 8.

Sister Loraine Marie Maguire spoke publicly for the first time after the 10th U.S. Circuit Court of Appeals in Denver heard oral arguments in an appeal filed by the Little Sisters and in two related cases, Southern Nazarene University in Bethany, Oklahoma, and Reaching Souls International, an Oklahoma nonprofit.

Colorado and Oklahoma are two of the six states under the court’s jurisdiction.

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“The government exempts huge corporations, small businesses and other religious ministries from what they are imposing on us — we are simply asking to carry out our mission to serve the elderly poor as we have always done for 175 years,” said Sister Maguire, surrounded by four other sisters, all clad in black habits and gray veils, outside the courthouse.

The Little Sisters of the Poor, a Denver-based religious order that cares for the elderly poor in several facilities around the U.S., has been steadfast in its refusal to provide contraceptive coverage to its employees as required by the U.S. Department of Health and Human Services under the Affordable Care Act.

“The idea that (the government) can’t deliver contraceptives to people without involving the Little Sisters of the Poor in their health plan is … ridiculous,” said an attorney for the Little Sisters of the Poor.

The religious order first filed suit against the HHS mandate in September 2013 in U.S. District Court for the District of Colorado and lost.

The order appealed to the 10th Circuit. Last December, the U.S. Supreme Court granted the Little Sisters a temporary injunction on enforcement of the mandate and now the order seeks to make that protection permanent.

Refusal to comply with the mandate may force the Little Sisters to pay millions of dollars in fines to the federal government. The fine is set at $1,000 a day per enrollee in an employer’s health plan.

“Now the government demands we choose between our care for the elderly poor and our faith,” Sister Maguire said. “We cannot do that and we shouldn’t have to. It is a choice that violates our nation’s historic commitment to ensure that people from diverse faiths can freely follow God’s calling in their lives. But the government forces us to either violate our conscience or take millions of dollars that we raise by begging for the care of the elderly poor and instead pay fines to the IRS.”

Mark Rienzi, senior counsel of the Becket Fund for Religious Liberty and lead attorney for the Little Sisters, delivered the oral arguments on behalf of the order. Adam C. Jed, an attorney with the U.S. Department of Justice, delivered the oral arguments on behalf of HHS, headed by Secretary Sylvia Mathews Burwell.

“The United States is the most powerful government in the history of the world,” said Rienzi, who spoke after Sister Maguire. “The idea that they can’t deliver contraceptives to people without involving the Little Sisters of the Poor in their health plan is … ridiculous.”

“The government has lots of ways to deliver these drugs to anyone they please,” he said. “They run exchanges in which anyone who wants the drugs gets them, they pay for the drugs through all sorts of federal programs. … They can certainly get contraceptives to people they want to get them to without involving the Little Sisters.”

A Catholic News Service request for comment from HHS was not immediately returned.

Under the mandate, nearly all employers must cover contraceptives, sterilizations and some abortion-inducing drugs for all employees in company health plans. It includes a narrow exemption for religious employers that fit certain criteria.

To opt out, nonexempt religious employers must follow a procedure to inform the government of its religious objections to the mandated coverage. The government in turn informs a third party-such as the employer’s insurer or the administrator of its plan-that it must provide the coverage at no cost to the employee.

Employers who are not exempt, like the Little Sisters of the Poor, had been required to fill out a self-certification form — known as EBSA Form 700 — to direct a third party, usually the manager of an employer’s health plan, to provide the contested coverage.

Many religious employers that have sued over the mandate argue that even filling out Form 700 makes them complicit in providing coverage they find objectionable.

Last August, the Obama administration issued revised rules, which religious employers still find objectionable. Now an eligible organization must advise HHS in writing of its religious objection to contraceptive coverage.

HHS itself will then notify the insurer for a health plan, or the Department of Labor will notify the third-party administrator for a self-insured plan, that the organization objects to providing contraception coverage. The insurer or third-party administrator must provide the coverage at no cost to the employee.

When the revised rules were released, an HHS statement said they “balance our commitment to helping ensure women have continued access to coverage for preventative services important to their health, with the administration’s goal of respecting religious beliefs.”

Sky Yarbrough, 51, a women’s studies student at Metropolitan State University of Denver, was among those waiting outside the courthouse to hear the statements.

“I totally … recognize that this is about human justice and social justice,” she said. “The argument comes down to, should we be forced to provide a service that goes against our religious beliefs. The Little Sisters have a right to state their opinion. … But to continue using religion as a separation, as a division, it needs to stop.”

Bernice Bertolli, 63, a retired legal secretary and parishioner of Holy Ghost Church in Denver, went to the hearing to support the Little Sisters.

“I believe they are right, they should not be forced to provide contraceptives or to sign the form the government now wants them to sign,” she said. “I think it went well for the Little Sisters. I had a good feeling coming out.”

Rienzi told CNS he expects the circuit court to issue a decision in two to six months.

In her closing comments, Sister Maguire thanked the court for hearing the case and the Becket Fund for its work.

“We prayerfully await the judge’s decision,” she said.