Written by Don Byrd
My last post looked at the government’s position in response to Justice Sotomayor’s New Year’s Eve temporary injunction, halting enforcement of the Affordable Care Act’s contraception coverage mandate against the group. Now that they have filed a response, here is a brief look at their reaction to the arguments of the government.
At central issue to this dispute is a form, available to religious organizations, certifying their religious opposition to the mandate. As a part of the Obama Administration’s plan to accommodate religious organizations, this self-certification form exempts the group from the requirement to provide such coverage to employees. But according to the Sisters of the Poor, that is not all the form does.
From the Little Sister’s response in support of the injunction (pdf):
[T]he government argues, essentially, that its form is meaningless and Mother Loraine should just sign it. That argument rests on the spurious claim that the certification form at issue is merely an “orderly means of permitting eligible individuals and entities to declare that they intend to take advantage of” an “exemption” from the mandate….
Respondents are simply blind to the religious exercise at issue: the Little Sisters and other Applicants cannot execute the form because they cannot deputize a third party to sin on their behalf. Respondents’ 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.
…
Respondents’ Self-Certification Form is not merely an “opt-out.” As the overwhelming majority of courts have recognized, Respondents have designed a regulatory scheme in which the Form acts as a “permission slip” that authorizes and in some cases commands another organization to provide objectionable drugs to the Little Sisters’ employees within the terms of the Little Sisters’ health plan.
Following these arguments she requested regarding the temporary injunction, Justice Sotomayor will at some point make a determination (or refer the matter to the entire Court to determine) whether to lift the injunction or keep it in place pending appeal of the suit in the lower courts, or to take up the entire dispute now. For more on this development, see Lyle Deniston’s post at SCOTUSblog:”The Little Sisters Case and EBSA Form 700.”
