Just before presiding over the Times Square countdown on New Year’s Eve, Supreme Court Justice Sonia Sotomayor granted a temporary injunction to a handful of Catholic nonprofit groups, including the Little Sisters of the Poor Home for the Aged. They say that the Obama administration’s accommodation on birth control coverage still violates their religious liberty. Sotomayor asked the government to respond by Friday. After that, the Justice, who oversees the circuit where the case was first filed, will either issue a further ruling herself or refer it to the full court.
The decision applies only to the organizations in question and doesn’t affect the broader contraceptive coverage regulations in the Affordable Care Act, which have already gone into effect for millions of American women. But it may signal that the broader court is receptive to arguments that filling out a form for an employee to get birth control directly from an insurer is a substantial burden on religion.
Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty and the lead attorney on the case, told msnbc of his clients, “They’re saying, ‘I can’t fill out permission slips for abortion, sterilization or contraception under any circumstances.’” (The mandate does not cover abortion, but some Catholic and evangelical groups have contended that the scientifically undocumented possibility the IUD and emergency contraception will disrupt the implantation of a fertilized egg is the same as abortion.)
Under the Affordable Care Act, all insurance plans are required to cover contraception, except for houses of worship and other groups that primarily employ and cater to co-religionists. After objections from nonprofit organizations, including universities and hospitals that have a religious affiliation, the Obama administration unveiled an accommodation that allowed employees to get birth control directly from insurers. But that compromise didn’t satisfy many of the groups. Forty-five such nonprofits have filed suit in federal court saying that filling out a form for someone else to get birth control is a substantial burden on their religion.
According to the Becket Fund, 19 out of 20 of the nonprofit plaintiffs have been granted temporary delays against enforcement of the regulation – which would involve paying penalties if the groups refused to comply – until the legal issues are resolved.
The government has argued that the accommodation respects religious liberty. In the Little Sisters case, they also said that the plaintiffs wouldn’t actually be subject to fines because they’re insured under an exempt “church plan.” On Dec. 30, the Tenth Circuit agreed, denying the injunction and leaving the group only the Supreme Court to turn to. (Two other groups that had appealed to Justices Elena Kagan and John Roberts ended up getting their injunctions from the circuit courts instead.)
Rienzi said the Little Sisters of the Poor’s objection is two-fold. First, “The sisters say my religion tells me not to fill out this piece of paper,” he explained. Second, their “church plan” refuses to get involved in any way in the provision of birth control. But these organizations also employ people who do not follow Catholic teachings on contraception. If their employers prevail, they will be denied birth control coverage.
In November, the Supreme Court said it would hear two cases of for-profit companies, including Hobby Lobby, also out of the Tenth Circuit. Those cases are slightly different, because the Supreme Court has yet to decide whether for-profit groups even have religious liberty, let alone if requiring that employee insurance plans cover birth control violates it. In the nonprofit cases, the government has already chosen to treat religiously-affiliated nonprofits differently. The question will be whether filling out a form is still a violation of religious freedom.
“Religiously affiliated organizations, including the two that filed this emergency appeal at the Supreme Court, are already able to get an exemption so that they aren’t paying for or administrating coverage of birth control if it violates their religious mission,” said Cecile Richards, president of Planned Parenthood, in a statement. “This exemption ensures that women can get access to affordable birth control no matter where their work, while also addressing the concerns of religiously affiliated organizations.”