Lift stay of Obamacare contraception mandate in nuns' case, Supreme Court told

The Obama administration argued that the stay of the Obamacare contraception mandate imposed by Supreme Court Justice Sotomayor is unneeded as the nuns are already entitled to a religious exemption.

Brennan Linsley/AP
Mother Patricia Mary walks in the hallway at the Mullen Home for the Aged, run by Little Sisters of the Poor, in Denver, Colo., Thursday Jan. 2, 2014.

The Obama administration urged the Supreme Court Friday to lift a temporary stay blocking enforcement of the Affordable Care Act’s contraception mandate against an organization of Roman Catholic nuns, arguing that the Act already provides for a religion-based exemption.

Justice Sonia Sotomayor issued the stay on New Year’s Eve and asked government lawyers to respond Friday morning to the group’s complaint that mandated contraceptive coverage under President Obama’s health-care reform law violated the nun’s religious beliefs.

In a 37-page brief, Solicitor General Donald Verrilli told the justices that the religious group – the Little Sisters of the Poor in Denver – is eligible for a religious exemption from the contraception mandate.

In addition, the brief says, the organization that administers the Little Sisters’ church-run health plan would also be exempt from the contraception mandate.

To obtain the requested relief, Mr. Verrilli said, all the Little Sisters had to do was sign a form certifying that they were justifiably claiming a religious exemption.

“As this case comes to the court, it is not about the availability or adequacy of a religious accommodation, but rather about whether a religious objector can invoke [the Religious Freedom Restoration Act] to justify its refusal to sign a self-certification that secures the very religion-based exemption to objector seeks,” he wrote.

A lawyer for the nuns disagreed with Verrilli’s assessment. “Unfortunately, the federal government has started the new year the same way it ended the old one: trying to bully nuns into violating their religious beliefs,” Mark Rienzi of the Becket Fund for Religious Liberty said in a statement.

The Little Sisters object to signing the government’s self-certification because – under the terms of the health-care reform regulations – such a certification authorizes a third-party administrator to provide the offensive contraceptive coverage to any employees seeking such coverage, but at arms-length from the objecting religious group.

The administrator of the Little Sisters health plan, Christian Brothers Services, is itself a Roman Catholic organization, and, thus, also qualifies for a religious exemption, the solicitor general says. Even though the self-certification by the Little Sisters would authorize a third-party health plan administrator to provide the offensive contraception coverage, none would be provided by the Christian Brothers, Verrilli insists.

“Given these circumstances, [the Little Sisters’] concerns that they are ‘authorizing others’ to provide coverage lacks any foundation in the facts or the law,” Verrilli wrote.

“[The Little Sisters] claim a right to extraordinary relief even though compliance with the procedure they challenge will not result in anyone else’s provision of the items and services to which applicants object,” he said.

Rienzi countered that the suit isn’t about compliance with certain government procedures, it is about protecting religious faith and matters of conscience.

“The government demands that the Little Sisters of the Poor sign a permission slip for abortion drugs and contraceptives, or pay millions in fines,” he said. “The Sisters believe that doing that violates their faith, and that they shouldn’t be forced to divert funds from the elderly poor they serve to the IRS.”

Rienzi added: “The government now asks the Supreme Court to believe that the very thing it is forcing the nuns to do – signing the permission slip – is a meaningless act. But why on earth would the government be fighting the Little Sisters all the way to the Supreme Court if it did not think its own form had any effect?”

“All of this is sad and unnecessary,” Rienzi said. “Our federal government is massive and powerful. It can obviously find ways to distribute contraceptives and abortion pills without forcing nuns to be involved.”

The case is among more than 90 lawsuits filed by various religious individuals, groups, and companies objecting to being forced by the government to provide forms of birth control that they say are offensive to their religious beliefs.

The high court is set to hear argument in two similar challenges involving objections by for-profit corporations and their owners. The owners say the mandate violates religious principles that they say play an essential role in how they run their companies.

Despite the ongoing litigation, the Affordable Care Act took full effect on Jan. 1 and remains in full effect for most Americans.

The injunction in the Little Sisters case applies only to the Little Sisters case.

In response to what it said was considerable confusion, Planned Parenthood issued a statement saying that as a religious organization the Little Sisters aren’t required to cover birth control.

“Today, 27 million women have access to birth control without a co-pay under the Affordable Care Act, and that’s not affected by the Supreme Court reviewing the administrative mechanism that religious groups can use to opt out of covering birth control,” the group said.

The case is Little Sisters of the Poor Home for the Aged v. Kathleen Sebelius (13A691).

A decision could come as early as Friday.

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