Bloomberg News

Nuns Get Court Compromise on Contraception Coverage

January 25, 2014

The U.S. Supreme Court said an order of Catholic nuns, for now, doesn’t have to fill out an Obama administration form that the religious group says might lead to contraceptive coverage for its employees.

The justices yesterday said the Little Sisters of the Poor and potentially hundreds of other religious groups with objections to birth control can instead inform federal officials in writing of their views.

The one-page order, which came without published dissent after more than three weeks of deliberations, represents a compromise on an issue that might have divided the justices along ideological lines. The order will apply while the legal dispute plays out in the lower courts.

The justices said their order “should not be construed as an expression of the court’s views on the merits.”

The nuns argued that the form, along with the requirement that they provide it to their insurance administrator, might eventually trigger contraceptive coverage. That can’t happen under current regulations because the rules exempt some church health-care plans.

The Fate of Obamacare

“We are delighted that the Supreme Court has issued this order protecting the Little Sisters,” Mark Rienzi, the lead lawyer for the nuns, said in a statement. “The government has lots of ways to deliver contraceptives to people. It doesn’t need to force nuns to participate.”

Sotomayor Order

The Justice Department said the court’s order will have a limited impact.

“This injunction applies only to the plaintiffs and is not a ruling on the merits of their case,” the department said in an e-mail. “And plaintiffs have always been eligible for an accommodation from the contraceptive coverage requirement.”

The action modifies a temporary order issued Dec. 31 by Justice Sonia Sotomayor to allow time for briefing and court review. Sotomayor then referred the matter to the full court for resolution.

Little Sisters, which runs 30 nursing homes across the U.S. and has hundreds of lay employees, sought Supreme Court intervention after a Denver-based federal appeals court refused to shield the group. That followed a federal trial judge’s ruling that the group’s rights weren’t violated.

The 2010 Patient Protection and Affordable Care Act requires employers to include birth control in the insurance coverage they provide workers. While the law exempts houses of worship from the contraception requirement, the rules governing other religious groups, including the Little Sisters, are more complicated.

Contraceptive Coverage

The court later this year will consider another religious-rights battle over the Obamacare requirement that employers cover birth control. The justices will hear arguments March 25 from family-run businesses that say they shouldn’t have to provide some types of contraceptive coverage.

The nuns were seeking an exemption for themselves as well as almost 500 other Catholic groups whose health-care plans are run by the Christian Brothers Employee Benefit Trust.

The case focuses on Health and Human Services regulations aimed at accommodating some religious objections to the contraceptive mandate. Under the rules, the nuns don’t have to provide the contraceptive coverage themselves and instead can provide their insurer with a “self-certification” form attesting to their objections.

The form is designed to shift the responsibility for providing contraceptive coverage to the objecting group’s insurer, which could then seek government reimbursement.

Religious Beliefs

The Little Sisters say even submitting the self-certification form would make them complicit in providing contraceptives, violating their rights under the Constitution and a federal religious-freedom law.

The administration says its regulations don’t impose a significant burden on the nuns’ religious beliefs. The rules make an exception for self-funded church health plans -- including the Little Sisters plan -- saying their insurance administrators don’t have to provide the coverage.

The high court order bars the administration from requiring the form if the Little Sisters “inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services.”

Both Sides

Religious-freedom experts were divided in their interpretation of the order.

“The court has ordered the Sisters to do what they said would burden them -- provide notice -- and so I view this as a win for the Obama administration,” said Marci Hamilton, a professor at Yeshiva University’s Benjamin N. Cardozo Law School.

Douglas Laycock, a professor at the University of Virginia School of Law, said it was “very shrewd” to have the nuns send their objections only to the administration and not to the insurer. “Sending it to the government does not act as an instruction to the insurer,” he said.

The order, Laycock said, is a “big but very temporary win for the religious organizations.”

The case acted on yesterday is Little Sister of the Poor v. Sebelius, 13A691.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editor responsible for this story: Patrick Oster at poster@bloomberg.net


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