The Obama administration responded on Friday to a plea before the Supreme Court from a Catholic-affiliated nursing home that got a temporary exemption from a key provision of the Affordable Care Act. The Little Sisters of the Poor sought to avoid filling out a form saying the group objects to birth control.
The Justice Department pointed out that due to a loophole, no birth control will actually result from the signing of the form, and even if it did, that isn’t a substantial burden on religious freedom. The Little Sisters of the Poor Home for the Aged’s “concern that they are ‘authorizing others’ to provide coverage lacks any foundation in the facts or the law,” the Department of Justice wrote in its response, filed by Solicitor General Donald Verrilli.
The nursing home is one of many religiously affiliated nonprofit organizations that have sued over the administration’s self-described accommodation of their objections. It allows them to opt out of covering birth control on employee health plans if they sign a form saying they object. Coverage is then normally provided directly by the insurer, though strangely, not in the Little Sisters’ case, because their “church plan” won’t cover birth control, and the government has no authority to force them to do so.
On Dec. 31, Supreme Court Justice Sonia Sotomayor, who oversees the circuit where the case was filed, temporarily blocked enforcement of the requirement until the Justice Department could respond and she, or the fuller court, could give it further consideration.
The DOJ also said it would be premature for the court to take the whole case, as requested by the Little Sisters, since no appeals court has fully considered any of the cases brought by nonprofit organizations.
The Justice Department argues in its response that the whole point is to accommodate religious objections while making sure that employees who need birth control can get it like other insured women. “Under these regulations, an eligible organization is not required ‘to contract, arrange, pay, or refer for contraceptive coverage’ to which it has religious objections.” In this particular case, the Justice Department adds, “With 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.”
The government has said it has the authority to require universal insurance coverage of preventative care without a co-pay, including contraception, because it advances public health and women’s equality. In the brief, it also points out that “the federal government subsidizes group health plans through favorable tax treatment.”
The Little Sisters acknowledged in their appeal to the Supreme Court that their employees would not currently get birth control under the provision, but argued that the government might change the regulations in the future. They have also argued that signing the form alone violates their religious belief.
“The government has imposed a substantial—indeed, a crushing—burden on Applicants’ exercise of religion,” wrote the Little Sisters to the Court, adding, “The questions of moral complicity in this case are religious, not legal.”
The Little Sisters also said that what the government was asking it to do in signing the form was the same as making a Jewish person eat pork or a Quaker person serve in a war. The Department of Justice responded dryly, “It is applicants’ position, not that of the court of appeals, that would lead to absurd results in those cases, for it would seemingly mean that the Quaker could not be made to attest to his status as a conscientious objector before being absolved of his military obligations; that the Jewish prisoner could not be required to fill out a form saying he had a religious objection to the consumption of pork before he was provided an alternative meal; and that the Seventh Day Adventist could not be obligated to state that he had a religious objection to working on Saturdays before being relieved of his shift.”
Justice Sotomayor can now choose to decide on the injunction herself or refer it to the entire Court. They can then decide whether to simply rule on the injunction, sending it back to the lower courts, or to hear the entire case. By the end of this term, the Court will decide on a related but separate case, Hobby Lobby and Conestoga Wood, which deals with the question of whether for-profit corporations can enjoy the legal protections of religious organizations and individuals. Depending on how broadly the Court rules in Hobby Lobby, it could also influence the fate of the lower court decisions.
Mark Rienzi, a lawyer for the Little Sisters, responded to the DOJ’s brief in a statement on Friday. “Unfortunately, the federal government has started the new year the same way that it ended the old one: trying to bully nuns into violating their religious beliefs,” he said.