The Supreme Court’s Hobby Lobby decision “is of no help to the plaintiffs’ position,” Judge Smith wrote in East Texas Baptist University v. Burwell. The reason, he explained, was “not just that there are more links in the causal chain here than in Hobby Lobby.” Rather, it was that “what the regulations require of the plaintiffs here has nothing to do with providing contraceptives.”

It’s worth quoting Judge Smith at some length, including his reference to the Religious Freedom Restoration Act, the federal law under which the Hobby Lobby case and the current cases were brought:

“The plaintiffs urge that the accommodation uses their plans as vehicles for payments for contraceptives. But that is just what the regulations prohibit. Once the plaintiffs apply for the accommodation, the insurers may not include contraceptive coverage in the plans. The insurers and third-party administrators may not impose any direct or indirect costs for contraceptives on the plaintiffs; they may not send materials about contraceptives together with plan materials; in fact, they must send plan participants a notice explaining that the plaintiffs do not administer or fund contraceptives. The payments for contraceptives are completely independent of the plans. . . The acts that violate their faith are the acts of the government, insurers, and third-party administrators, but R.F.R.A. does not entitle them to block third parties from engaging in conduct with which they disagree.”

And of course, the choices and the rights of third parties, in this instance, the female employees, are the whole point. It is not only that female employees, and not their bosses, make the choice to use birth control. It is that the employers’ religious objections, if honored, would cause these third parties actual harm — harm that would be avoided if the employers simply signed the form or sent the letter. The extreme to which the plaintiffs’ refusal takes their “complicity” argument is what the appeals courts have found so alarming. The organizations don’t want to pay for birth control and they don’t want anyone else to pay for it either.

The United States Court of Appeals for the 10th Circuit had this to say in a decision last week, Little Sisters of the Poor v. Burwell: “Plaintiffs sincerely oppose contraception, but their religious objection cannot hamstring government efforts to ensure that plan participants and beneficiaries receive the coverage to which they are entitled.”

The Religious Freedom Restoration Act, the court said, “does not prevent the government from reassigning obligations after an objector opts out simply because the objector strongly opposes the ultimate goal of the generally applicable law. Plaintiffs’ complicity argument therefore fails. Opting out would eliminate their complicity with the mandate and require only routine and minimal administrative paperwork, and they are not substantially burdened by the government’s subsequent efforts to deliver contraceptive coverage in their stead.”

Writing in The National Catholic Reporter last week, Michael Sean Winters, author of a blog on the publication’s website called Distinctly Catholic, praised the 10th Circuit decision, saying: “If you think the form used to object to participation is itself a form of participation, I am not sure how we, as a nation, can ever carve out religious exemptions.”

Evidently, the religious groups pressing this litigation would rather keep fighting than declare victory. Mark Rienzi, senior counsel of the Becket Fund for Religious Liberty, which represents the Little Sisters of the Poor and is involved in many of the other cases, responded to the 10th Circuit’s decision by accusing the Obama administration of an “unrelenting pursuit of the Little Sisters of the Poor” and of seeking to “crush the Little Sisters’ faith.”