By Diane Carman

It’s not enough for the Little Sisters of the Poor to be able to opt out of the Affordable Care Act provision that requires health insurance for employees to cover contraceptives.

In a hearing Monday in Tenth Circuit Court of Appeals in Denver, their lawyer argued that even to acknowledge to the government that they will not provide contraceptive coverage forces them to do something they consider immoral.

Members of the Little Sisters of the Poor gather in front of the federal courthouse in Denver

In the case, Little Sisters of the Poor v. Burwell, Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty, argued that by signing the form to opt out of the requirement to cover contraceptives, the sisters would “trigger” a mechanism in place for the government to provide alternate coverage for employees who seek contraceptives.

He said it would make the nuns “complicit” in an act that conflicts with their deeply held religious beliefs. They “object to filing the paperwork” that would enable anybody to provide contraceptives.

“Mother Loraine can’t sign that document,” Rienzi said.

Sister Loraine Marie Maguire is Mother Provincial of the order, which provides nursing services to the elderly. In a statement released after the hearing, Maguire said that by requiring her to formally opt out of contraceptive coverage, the government “demands we choose between our care for the elderly poor and our faith.

“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.”

As a result of the U.S. Supreme Court decision in the Hobby Lobby case last summer, businesses whose owners have strongly held religious beliefs against using contraceptives may be allowed to opt out of the ACA requirement to include contraceptives as well as other preventive care in health insurance coverage. This court challenge seeks to take that ruling further.

Adam Jed argued the government’s case. He compared the argument presented by the Little Sisters of the Poor to a conscientious objector refusing to register for the draft or an assembly line worker whose conscious precludes him from working on tank parts and chooses simply to not show up for work instead of informing his boss of his objection.

“Literally, all you have to do is point to any action that is a conscientious objection” to see that opting out is a well established means for expressing moral objections, Jed said. “It’s impossible to square the act of opting out with a substantial burden” on those who express a religious objection.

Rienzi said that in “Mother Loraine’s view, she’s not allowed to cooperate” with the government process that could lead to employees obtaining contraceptives.

“The government admits it wants to offer its carrot (to provide contraceptive coverage), the Little Sisters won’t trigger that process to offer that incentive.”

Senior Judge Bobby R. Baldock described the actions of the Little Sisters of the Poor as “telling the government to go pound sand.”

Two related cases were also argued Monday morning. They were Southern Nazarene University v. Burwell and Reaching Souls International v. Burwell.

The cases will be decided by Senior Judge Monroe G. McKay, Judge Scott M. Matheson Jr. and Baldock next year.