Supreme Court urged to reject health law suit
Nuns challenged requirements on birth control
WASHINGTON — The Obama administration on Friday urged the Supreme Court to reject a lawsuit filed by the Little Sisters of the Poor, an order of Roman Catholic nuns challenging requirements for many employers to provide health insurance coverage of birth control or face penalties under the new health care law.
The Justice Department said the requirements did not impose a “substantial burden” on the nuns’ right to practice their religion because they could “opt out” of the obligation by certifying that they had religious objections to such coverage.
The Little Sisters “need only self-certify that they are nonprofit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services,” the administration said in a brief filed with the Supreme Court by Solicitor General Donald B. Verrilli Jr. In addition, he said, the nuns would need to send a copy of the certification to an entity that administers their health plan, Christian Brothers Services.
On Tuesday night, just hours before the contraceptive coverage requirements were to take effect, Supreme Court Justice Sonia Sotomayor temporarily blocked the Obama administration from enforcing them with respect to the nuns and certain other religious groups. The Little Sisters of the Poor operate nursing homes for poor people in the United States and around the world.
In its court filing Friday, the administration said the nuns “have no legal basis to challenge the self-certification requirement or to complain that it involves them in the
The Little Sisters of the Poor “need only self-certify that they are nonprofit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services.”
— Justice Department
process of providing contraceptive coverage.” If the nuns file the certification required by federal rules, the nuns, their self-insured health plan and the entity that administers the health plan will not be required to cover birth control, the administration said. Mr. Verrilli said the nuns were not entitled to an injunction further blocking the contraceptive coverage rules.
The nuns disagreed. “The government demands that the Little Sisters of the Poor sign a permission slip for abortion drugs and contraceptives, or pay millions in fines,” said Mark L. Rienzi, a lawyer at the Becket Fund for Religious Liberty, who represented the nuns in the lawsuit. “The sisters believe that doing that violates their faith.”
Becket Fund deputy general counsel Eric C. Rassbach said the relief offered by the government was not a complete exemption. By signing the form, he said, the nuns would be “designating someone else to provide the contraceptive drugs and devices” to which they object.
“It makes them complicit,” Mr. Rassbach said. The nuns do not want to sign the form because it would “authorize and designate” the administrators of their health plan, including Express Scripts, to provide contraceptives, he added.
The Obama administration argued Friday that the Affordable Care Act did not really impose an “employer mandate.” The birth control requirements “apply only if an employer offers a group health plan,” the administration said in its brief.
“Employers, however, are not required to offer group health plans in the first place,” the brief continued. “Large employers (those with more than 50 full-time-equivalent employees) face a potential tax if they do not provide coverage, but that gives them a choice between two legal options: provide a group health plan or risk payment of the tax.”
Mr. Verrilli insisted that the certification form would exempt the nuns from any “requirement to furnish or pay for contraceptive coverage (and shield them from any tax liability for not doing so).” In addition, he said, “employees of the nursing homes they operate will not receive such coverage.” The brief noted, “Certification would result in the complete denial of coverage for the drugs and devices to which applicants object.”
The nuns unsuccessfully challenged the Obama administration rules in U.S. District Court in Denver, where they operate a nursing home. They are now seeking an injunction to block enforcement of the rules while they pursue their case in the 10 U.S. Circuit Court of Appeals in Denver. The circuit court declined earlier this week to grant such an injunction.
The Little Sisters’ lawsuit is one of many challenging the contraceptive coverage requirement. The requirement’s supporters said the litigation did not affect most Americans.
“Today, 27 million women have access to birth control without a co-payment under the Affordable Care Act,” said Cecile Richards, president of the Planned Parenthood Federation of America. “That’s not affected by the Supreme Court reviewing the administrative mechanism that religious groups can use to opt out of covering birth control.”