Written by Don Byrd
The federal government this morning filed its response to the Supreme Court following the New Year’s Eve injunction issued by Justice Sotomayor in a contraception mandate case. The temporary injunction came hours before the January 1 deadline for religious nonprofits to certify their opposition to providing health insurance that includes contraception.
The Affordable Care Act requires insurers to provide such coverage directly to employees in such a case. The plaintiffs in this instance – the Little Sisters of the Poor – argue that such an action (the certification) triggers the contraception coverage, entangling them in a way that violates their religious beliefs (for more detailed discussion of the arguments I highly recommend Marty Lederman’s post here).
In response (pdf), the federal government emphasized that the Little Sisters of the Poor are exempt from the requirement to provide the coverage they oppose. Certification merely secures that exemption. Ordinarily, the government would then require the insurance administrator to offer the coverage directly, but here, the Justice Department points out, the administrator is a “church plan,” not subject to regulation.
[W]ith the stroke of their own pen, applicants can secure for themselves the relief they seek from this Court — an exemption from the requirements of the contraceptive-coverage provision — and the employer-applicants’ employees (and their family members) will not receive contraceptive coverage through the plan’s third-party administrator either.
If you’re keeping score at home, it’s important to keep this case and others like it distinct from the Hobby Lobby case the U.S. Supreme Court will hear later this year. Hobby Lobby is about whether closely held, for-profit secular companies can be required to provide coverage the company’s owners oppose on religious grounds. Nonprofit religious organizations – like Little Sisters – are exempt by the Affordable Care Act from having to provide such coverage. They need only certify the religious objection to their insurance administrator. The Little Sisters dispute is about whether this accommodation is nonetheless sufficient to avoid violating the First Amendment rights of religious organizations.
In most similar cases winding through the courts, injunctions were granted in lower courts, halting the rule while the lawsuits play out. In the Little Sisters case, the trial court and appeals court rejected the injunction application, setting the stage for Justice Sotomayor’s action on December 31.
