WASHINGTON - The Obama administration urged the Supreme Court on Friday to reject a lawsuit filed by the Little Sisters of the Poor, an order of Roman Catholic nuns challenging requirements for many employers to provide health-insurance coverage of contraceptives or face penalties under the new health-care law.
Under the Patient Protection and Affordable Care Act, most health-insurance policies have to cover all Food and Drug Administration-approved contraceptives as preventive care for women, free of cost to the patient.
Churches and other houses of worship are exempt from the birth-control requirement, but affiliated institutions that serve the general public are not. That includes charitable organizations, universities and hospitals.
In response to an outcry, the government came up with a compromise that requires insurers or health-plan administrators to provide birth-control coverage but allows the religious group to distance itself from that action. The exemption is triggered when the religious group signs a form for the insurer saying that it objects to the coverage.
A third-party insurer can then go forward with the coverage.
The Justice Department said the requirements did not impose a “substantial burden” on the nuns’ right to practice their religion because they could “opt out” of the obligation by certifying that they had religious objections to such coverage.
The Little Sisters, a group of Denver nuns who run nursing homes for the poor, “need only self-certify that they are nonprofit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services,” the administration said in a brief filed with the Supreme Court by the solicitor general, Donald Verrilli Jr.
In addition, he said, the nuns would need to send a copy of the certification to an entity that administers their health plan, Christian Brothers Services.
On Tuesday night, just hours before the contraceptive coverage requirements were to take effect, Justice Sonia Sotomayor of the Supreme Court temporarily blocked the Obama administration from enforcing them with respect to the nuns and certain other religious groups.
In its filing with the court Friday, the administration said the nuns “have no legal basis to challenge the self-certification requirement or to complain that it involves them in the process of providing contraceptive coverage.”
If the nuns file the certification required by federal rules, the nuns, their self-insured health plan and the entity that administers the health plan will not be required to cover birth control, the administration said.
Verrilli said the nuns were not entitled to an injunction further blocking the contraceptive coverage rules.
The nuns disagreed. 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 in such cases.
“The government demands that the Little Sisters of the Poor sign a permission slip for abortion drugs and contraceptives, or pay millions in fines,” said Mark Rienzi, a lawyer at the Becket Fund for Religious Liberty, who represented the nuns in the lawsuit. “The sisters believe that doing that violates their faith.”
Government officials “are 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,” Rienzi said.
The Obama administration also argued Friday that the Affordable Care Act did not really impose an “employer mandate.”
The contraceptive requirements “apply only if an employer offers a group health plan,” the administration said in its brief.
“Employers, however, are not required to offer group health plans in the first place,” the brief continued. “Large employers (those with more than 50 full-time-equivalent employees) face a potential tax if they do not provide coverage, but that gives them a choice between two legal options: provide a group health plan or risk payment of the tax.”
Verrilli insisted that the certification form would exempt the nuns from any “requirement to furnish or pay for contraceptive coverage (and shield them from any tax liability for not doing so).”
Moreover, because the nuns in the current case get their insurance coverage from another Catholic group that is also exempt from the rule, they have no reason to be concerned that their application for an exemption would cause the insurer to provide contraceptive coverage, the brief said.
The employees of the nursing homes the nuns run in Colorado and their family members “will not receive contraceptive coverage” in any case, Verrilli wrote. “Completion of that certification would result in the complete denial of coverage for the drugs and devices to which [they] object.”
But the Little Sisters said their religious freedom is still compromised, because they must either refuse the certification and face fines or be complicit in “the government’s system to distribute and subsidize contraception.”
The nuns unsuccessfully challenged the Obama administration rules in U.S. District Court in Denver, where they operate a nursing home. They are now seeking an injunction to block enforcement of the rules while they pursue their case in the U.S. Court of Appeals for the 10th Circuit, in Denver. The circuit court declined earlier this week to grant such an injunction.
The Little Sisters’ lawsuit is one of many challenging the contraceptive coverage requirement. Supporters of the requirement said the litigation did not affect most Americans.
“Today, 27 million women have access to birth control without a co-payment under the Affordable Care Act,” said Cecile Richards, the president of the Planned Parenthood Federation of America. “That’s not affected by the Supreme Court reviewing the administrative mechanism that religious groups can use to opt out of covering birth control.” Information for this article was contributed by Robert Pear of The New York Times; by Jesse J. Holland of The Associated Press; by Robert Barnes of The Washington Post; and by David G. Savage of the Tribune Washington Bureau.
Front Section, Pages 1 on 01/04/2014