SCOTUS Grants a Reprieve to Nuns on Contraceptive Mandate

Some court watchers are cautioning us not to read too much into this Supreme Court decision to grant a temporary stay against enforcing the contraceptive mandate for some religious institutions, including the Little Sisters of the Poor who have challenged a paperwork requirement of the mandate in federal court.


The justices are not ruling on the merits of the case. They have agreed to grant relief to the plaintiffs until the lower court rules on their case.

Associated Press:

The Supreme Court on Friday offered a short-term compromise that would continue to exempt a group of Denver nuns that operates charity nursing homes from the birth control mandate of the nation’s health care law if they declare their objections in writing.

The nuns will take the court up on its offer and provide a written notice, officials said.

The justices asked the nuns to write the Department of Health and Human Services declaring themselves a religious nonprofit organization and making their objection to birth control. In return, the high court would continue to block for them the contraceptive coverage requirement of the Affordable Care Act, also known as Obamacare, while their appeal is heard in the 10th U.S. Circuit Court of Appeals.

Their nuns’ lawyer, Mark Rienzi of the Becket Fund for Religious Liberty, said they were delighted to hear about the court’s decision. “It made no sense for the Little Sisters to be singled out for fines and punishment before they could even finish their suit,” he said.

Under the health care law, most health insurance plans 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. The insurer can then go forward with the coverage.

A group of Denver nuns who run nursing homes for the poor, called the Little Sisters of the Poor Home for the Aged, say signing that form makes them complicit in providing contraceptive coverage, and therefore violates their religious beliefs.

The high court exempted them from the government form requirements, saying the nuns only have to inform HHS in “writing.”

“To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the government and need not send copies to third-party administrators,” the justices’ order said.


The case is unusual because the nuns are already exempt from the contraceptive mandate itself, but they see filling out the government form showing why they are exempt facilitates the dispensing of contraceptives.


The two groups of the Little Sisters order, in Denver and Baltimore, have an employee benefit plan that would be covered by the “contraceptive mandate” if they did not qualify for an exemption. The government says that they do qualify, but only if they file a Form 700 and pass on copies to the health plan administrator, Christian Brothers Employee Benefit Trust.

The Christian Brothers entity itself has made clear that it, too, objects to the “contraceptive mandate” and would not incorporate it in the Little Sisters plan. And, the government told the Court, the Christian Brothers would not have to do that, because another federal law exempts “church plans” from the ACA mandate.

Even so, the Little Sisters, in urging the Court to give them formal legal shelter from the mandate, had argued that they did not want any part in the scheme — not filing Form 700 and not passing it on to Christian Brothers. That is exactly what they won — temporarily — in Friday’s order from the Supreme Court.

Of course, they still have to persuade the Tenth Circuit, in their appeal there, that the mandate’s obligations are an unconstitutional intrusion on their religious beliefs.

Although the Friday order relieved the Little Sisters, for the time being, of a duty to file Form 700 and pass that on to their plan’s operator, the Justices did give the federal government something, too. The government, in resisting the Little Sisters’ challenge, had said that the government has to have some workable mechanism that religious groups can file in order to be let out of the mandate’s obligation.

The Justices supplied that with the requirement that the Little Sisters make a written declaration (the Court did not say what exact format it must have) that they are seeking an exemption. Presumably, that will be a better option for them, because under the ACA only a properly filled-out Form 700 could lead to actual coverage of the contraceptive services included in the mandate. The legal force of that particular document was at the core of the Little Sisters’ religious objection. Once they filled it out, they contended, it just might lead, in practical terms, to the beginning of such coverage.


The challenge to the contraceptive mandate itself will come in March when the Supreme Court hears several consolidated cases from for-profit businesses whose owners say the mandate compromises their religious beliefs.


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