The Washington Post

Administration tells Supreme Court to lift delay on birth-control rule for Colo. nuns

The Obama administration told the Supreme Court on Friday that a group of Colorado nuns does not need protection from the new health-care law’s provision providing contraceptive coverage for employees because the group can easily exempt itself from the requirement.

The government asked Justice Sonia Sotomayor to lift the temporary injunction she issued New Year’s Eve for the Little Sisters of the Poor, a Colorado nonprofit organization that provides services to the elderly. The Affordable Care Act, new provisions of which went into effect Jan. 1, requires employers who provide insurance coverage to include no-cost FDA-approved contraceptive services as preventive care.

But nonprofit organizations such as the nuns’ may opt out of the requirement simply by certifying that they have religious objections, Solicitor General Donald B. Verrilli Jr. wrote in a response to Sotomayor filed Friday morning.

“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,” Verrilli wrote.

Religiously oriented nonprofit organizations around the country have objected to the requirement and said it violates protections granted by the Religious Freedom Restoration Act.

They contend that if they sign the self-certification letters, that makes them complicit in the government’s plan to provide contraceptive services, because the law provides that third-party insurers still provide the coverage.

Mark L. Rienzi, a Catholic University law professor representing the nuns, said the government is “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.”

But Verrilli said the Little Sisters’ suit is a weak test case. Their third-party insurer is a church plan that the government contends cannot be required to provide contraceptive services anyway. The nuns dispute that view.

Most of the nonprofit organizations challenging the new requirement have received injunctions while they pursue their litigation. No appeals court has yet ruled on the merits of their arguments. Sotomayor could now rule on the nuns’ request herself or refer it to the other eight justices.

The suit is among dozens that have challenged the health-care law’s requirement that employer-issued insurance plans make contraceptive coverage available.

Because religious organizations such as churches are exempt from providing contraceptive coverage, the legal battle against the requirement has proceeded on two separate fronts.

One involves religious-oriented nonprofit organizations, such as the nuns’. The other concerns private corporations whose owners say that providing insurance coverage offering some contraceptives — or any contraceptives at all, according to some of the suits — violates their religious beliefs. It is the latter complaints that have advanced the furthest legally.

The Supreme Court will hear arguments, likely in March, in two cases that have been combined. One was brought by the owners of Hobby Lobby, an arts-and-crafts chain that owner David Green says is run on Biblical principles. The full U.S. Court of Appeals for the 10th Circuit in Denver said forcing the company to comply with the contraceptive mandate would violate the Religious Freedom Restoration Act, a 1993 law providing special protections for religious expression.

The second case went the other way. A divided panel of the U.S. Court of Appeals for the 3rd Circuit in Philadelphia ruled that Conestoga Wood Specialties, a Pennsylvania cabinet-making company owned by a Mennonite family, must comply with the contraceptive mandate.

The litigation involving nonprofit organizations is not as far along. The suits were delayed because the administration has tried to come up with an accommodation for the groups.

Its offer was that organizations such as the Little Sisters could get out of the requirement to provide contraceptive coverage by submitting the self-certification form attesting to their objections. That form is designed to shift the responsibility for providing contraceptive coverage to the group’s insurer, which would either pick up the cost itself or seek government reimbursement.

But the Little Sisters said that even that compromises their religious freedom. They must either refuse and face fines, they said in their application for an injunction, or be complicit in “the government’s system to distribute and subsidize contraception.”

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.

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