Obama Administration Urges High Court to Preserve Birth-Control Mandate

 

 

By Brent Kendall and Louise Radnofsky

U.S.  government Says Religious Groups Have No Basis for Blocking Provisions

The Obama administration on Friday urged the Supreme Court to allow enforcement of the federal health-care law’s contraception requirements, arguing that religiously affiliated nonprofits had no valid basis for seeking to block the provisions.

The administration’s arguments, in a filing by U.S. Solicitor General Donald Verrilli, came in response to a request by Justice Sonia Sotomayor, who on New Year’s Eve temporarily blocked enforcement of the contraception requirements against a group of nonprofit Roman Catholic homes for the elderly poor.

Mr. Verrilli said the law didn’t place burdens on the Little Sisters of the Poor, which operates the homes and brought the case in federal court in Denver, because they could claim an exemption to the contraception mandate. Neither the homes nor their church-affiliated benefits plan could be required to provide birth-control coverage to employees, so there was no reason for the high court to block enforcement, he said.

The 2010 Affordable Care Act requires that employers include free contraception in health-care plans offered to employees. Churches are exempt from the requirement. The administration last year offered a compromise to religious nonprofits such as universities and hospitals, saying they could object on religious grounds to offering or paying for contraceptive coverage. If the nonprofits object to providing coverage, many insurers can be required to step in and provide the coverage independently.

The case brought by the Little Sisters, an order of Catholic nuns, is one of dozens of challenges to the contraception coverage requirements brought by religiously affiliated institutions that say the compromise would still leave them complicit in the government’s system for distributing and subsidizing contraception, including the so-called morning after pill, which they consider to be an abortifacient.

“The government demands that the Little Sisters of the Poor sign a permission slip for abortion drugs and contraceptives,” said Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty, the law group representing the Little Sisters.

Some lower courts have temporarily blocked enforcement of the provision against religious nonprofits while the cases proceed. Other courts have refused, including in a case involving the University of Notre Dame.

The government is arguing that the Little Sisters case is a poor candidate for Supreme Court intervention because the homes use an unusual type of insurance—a church plan called the Christian Brothers Employee Benefit Trust. That means they aren’t affected in the same way as most of the religiously affiliated nonprofits that operate their own plans with the assistance of for-profit companies.

Justice Sotomayor, who is responsible for reviewing emergency legal requests that originate from the judicial circuit based in Denver, temporarily blocked enforcement of the law against the Little Sisters after a federal appeals court refused to do so. After the government’s filing Friday, she will have to decide whether to maintain an injunction that bars enforcement against the Catholic homes.

Her next move is being eyed closely by Notre Dame, which lost its bid for an injunction against the mandate when a Chicago-based appeals court denied the request on Monday. The school has complied with the contraception requirement for its 2014 insurance plan by using the administration’s compromise arrangement for its 5,000 employees while its case continues in court, said Paul Browne, a spokesman for the university.

Mr. Browne said that Meritain, the university’s health-insurance administrator, would be contacting employees covered by the university’s plan on Friday to tell them of its arrangements to provide contraception coverage.

But Mr. Browne said that if the Little Sisters obtain a further order from the Supreme Court blocking enforcement of the mandate, the university will ask the Chicago appeals court to reconsider its earlier decision because that court would be at odds with decisions from other courts, including the Supreme Court.

The Supreme Court already is preparing to consider another legal issue related to the contraception requirement: whether for-profit corporations can object to the mandate on religious grounds. The justices likely will hear oral arguments on that issue in March or April, with a decision expected by the end of June.

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