The Obama Administration on Friday told the U.S. Supreme Court that an order of Catholic nuns had no legal basis to argue that the federal healthcare law involves them in providing contraceptive insurance coverage.
"They need only self-certify that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, and then provide a copy of their self-certification to the third-party administrator of their self-insured group health plan," wrote Solicitor General Donald Verrilli Jr. "At that point, the employer-applicants will have satisfied all their obligations under the contraceptive coverage provision."
Verrilli was responding to an order by Justice Sonia Sotomayor on Dec. 31 that the government respond to a request for an injunction by the Little Sisters of the Poor, a Catholic order of nuns who care for the elderly sick and poor in Denver and Baltimore. They provide employee benefits through Christian Brothers Employee Benefit Trust, a self-insured church plan, which is administered by Christian Brothers Services, also a party to the high court case.
Sotomayor imposed a temporary injunction blocking the Jan. 1 effective date by which, the nuns argued, they were required to provide contraceptive insurance to their employees. With the government's response now filed, Sotomayor or the full court will likely issue an additional order today or in the next few days.
The nuns' counsel, Mark Rienzi of the Becket Fund for Religious Liberty, reacted quickly to the government's arguments, saying, the government was asking the Supreme Court "to look the other way while it coerces the Little Sisters." He added that the government devoted its reply to trying to keep the court out of the issue "which would leave hundreds of religious organizations subject to massive fines for following their religion."
In addition to urging the court to reject the nuns' requested injunction, Verrilli also said their alternative request—that the justices grant full review of their claims before an appeals court heard the case—was premature. "The lack of even one court of appeals decision addressing the merits of applicants' claim is reason enough to deny their petition for certiorari before judgment," he wrote.
The Affordable Care Act requires some employers to provide coverage for preventive services in their employee group health plans. Under the law's regulations, those services include coverage for all FDA-approved contraceptive methods, including emergency contraceptives, sterilization procedures, and related patient education and counseling.
Verrilli said both the federal district court and the U.S. Court of Appeals for the Tenth Circuit had recognized that the nuns' case involves a church insurance plan that is exempt from regulation under the Employee Retirement Income Security Act of 1974. Because of that exemption, their plan's administrator is under no legal obligation to provide the coverage after the nuns certify their objections.
In fact, he added, the church plan administrator has said it will not provide contraceptive coverage. "As a result, a signed certification will discharge all employer- applicants' responsibilities under the contraceptive-coverage provision, and their employees will not receive such coverage from the third-party administrator," he wrote.
The nuns filed their lawsuit last September challenging the contraception requirement under the Religious Freedom Restoration Act, the First Amendment, the 14th Amendment, and the Administrative Procedure Act.
The nuns argue they do not qualify for any of the law's exemptions because their Trust is not a grandfathered plan and they do not meet the definition of "religious employers" because they are not directly owned or controlled by local Catholic bishops. They are part of an international order of nuns.
A federal district court on Dec. 27 denied the Little Sisters' request for an injunction after finding that their rights were not violated, and the Tenth Circuit affirmed on Dec. 31.
In their application to Justice Sonia Sotomayor on Dec. 31, the Little Sisters argued that they have "sincere and undisputed religious objections" to the provision of those preventative care services in their health insurance plan. The requirement, they said, "will expose the Little Sisters of the Poor to draconian fines unless they abandon their religious convictions and participate in the government's system to distribute and subsidize contraception, sterilization, and abortion-inducing drugs and devices."
Although the healthcare law allows them to opt out of the requirement by submitting a "self certification" attesting to their religious objections, they contend that the form makes them complicit in providing contraception coverage because it then authorizes their insurer or a third party administrator to issue the coverage. The insurer could then seek reimbursement from the federal government.
"The result is a case that should be straightforward and easy under the Religious Freedom Restoration Act ("RFRA")," wrote the Becket Fund's Rienzi. "(Little Sisters) face a substantial burden on their religious exercise because their religious beliefs and objections are undisputed and sincere, and because the government is imposing massive pressure on them to violate those beliefs."
However, the government told the court that the nuns were "simply wrong as a factual matter" when they claim that self-certification would be used to provide the services to which they object.
The case is Little Sisters of the Poor v. Sebelius.
The justices have granted review in two cases in which for profit companies contend that the contraception requirement violates their owners' deeply held religious beliefs. Those cases are expected to be heard sometime in March.
The Becket Fund reports that there are 91 lawsuits challenging the contraception requirement: 45 nonprofit lawsuits and 46 for-profit challenges. Injunctions have been granted in 19 of the nonprofit cases and a denial in one. In the for-profit cases, 33 injunctions have been approved and six denied.
UPDATED AT 3:50 p.m.: The Little Sisters of the Poor responded to the Obama Administration's arguments Friday afternoon by saying the government is "simply blind to the religious exercise at issue: the Little Sisters and other Applicants cannot execute the (certification) form because they cannot deputize a third party to sin on their behalf." The government's "casual dismissal of that religiously forbidden act as a mere 'stroke of their own pen,' perpetuates their claim below that the Little Sisters are fighting an 'invisible dragon.' But minimizing someone’s religious beliefs does not make them disappear."
The nuns' counsel urged the justices to consider a grant of review before judgment in their case as an alternative to an injunction. "This dispute is unique: it is playing out in dozens of courts across the country, with most having obtained the protection of injunction, but not all. Allowing this to run its course without this Court's supervision means some religious organizations will be forced into either hypocrisy or financial ruin, while others are protected. This state of affairs is not tolerable," argued their lawyer.
There has been no action yet by Justice Sonia Sotomayor or the full court.