There’s a twist in the contraceptive case currently before the Supreme Court: It’s not clear if the Little Sisters of the Poor Home for the Aged even has a case to begin with.
The Colorado-based nursing home, which is operated by a Catholic order of nuns, says it objects to filling out an opt-out form that would lead to employees getting birth control from a third party. It has asked the Supreme Court to block its enforcement, and on New Years Eve, it won a temporary delay. But because of a regulatory loophole, which gives the government no enforcement power over its so-called "church plan," the Little Sisters’ employees likely won’t get contraceptive coverage even if they do sign the form.
At issue is a compromise the Obama administration worked out between the Affordable Care Act’s provision to require contraceptive coverage on all insurance plans and the objections of religious groups. Houses of worship are fully exempt, but the Obama administration eventually carved out a middle ground for nonprofit organizations, like churches and schools, who have a religious affiliation that objects to birth control. To opt out of paying for birth control on a group plan, the groups have to fill out a form certifying their objections. The employees can then get their contraception coverage directly from the insurer.
That accommodation wasn’t enough for dozens of religiously-affiliated non-profits, who have sued the federal government for infringing on their religious liberty by requiring them to sign a form saying they object to birth control. Eighteen of the groups have gotten temporary injunctions from enforcement of the law -- meaning they don't have to fill out the form or pay fines for failing to comply until the courts hear the cases on the merits.
The Little Sisters case is different, because it's disputed that the regulations even apply to them and their plan, administered by the Christian Brothers Employee Benefit Trust. When they filed in a district court in Colorado, the government moved to dismiss the case, arguing that it actually doesn't have authority under federal regulations to require a "church plan" to provide contraceptive coverage at all, or to charge the employer fines for not complying. That's because such plans are exempt from ERISA, which serves as the enforcement mechanism for the Affordable Care Act.
"While defendants continue to consider potential options to fully and appropriately extend the consumer protections provided by the regulations to self- insured church plans, they acknowledge that, at this time, they lack authority to require the [third party administrators] of self-insured church plans, like plaintiff Christian Brothers Employee Benefit Trust, to make the separate payments for contraceptive services for participants and beneficiaries in such plans under the accommodation," wrote the Department of Justice in its reply in the District Court. In other words, even if the government's goal was for everyone who wants birth control coverage to get it, its hands are tied.
The district court denied the injunction in part for that reason, though it didn't dismiss the case, as requested by the government, because the government was still asking the Little Sisters to fill out the opt-out form. "The Court accepts these religious beliefs as sincere, but does not find that the challenged regulatory scheme will substantially burden these beliefs," Judge William J. Martinez concluded. He pointed out it would take less than an hour to fill out the form -- and that it would result in exactly no one being forced to pay a fine or getting birth control.
The Tenth Circuit Court of Appeals agreed. But on New Year's Eve, Justice Sonia Sotomayor gave the Little Sisters a temporary reprive, asking the government to respond by Friday at 10 a.m. That gives her (or, if she chooses, the full court) time to decide whether the Little Sisters even has a case, and whether it should get an injunction against enforcement of the regulation. The Court could also decide to make a broader decision to instruct the lower courts on such cases, but the typical procedure is to send a case back to the appeals court. And because of the regulatory loophole into which the Little Sisters falls, the Court may decide it's a poor vehicle to decide the larger issue.
"Part of the standard of the Court is balancing the harms from the parties," said Brigitte Amiri, staff attorney at the ACLU's Reproductive Freedom Project. "In this case, the court could say there’s simply no harm to these parties, because once they fill out the form, no contraception is ever going to result."
But Mark Rienzi, the lead attorney for the Little Sisters of the Poor, told msnbc Thursday that filling out the form alone was harm enough, even if no contraceptive coverage comes from it. "The form by law authorizes and designates people to [cover] contraception, which the sisters can’t do," he said. And if it was so meaningless, he said, why was the government insisting they fill out the form in the first place?
"The Little Sisters shouldn’t be told by their government that they have to outsource this, that you have to hand it off and hope that someone else, in this case the Christian Brothers, stands firm against this," he said, referring to contraceptive coverage.