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Contraception compromise at stake as high court mulls injunction


By Joe Carlson
Posted: January 2, 2014 - 8:30 pm ET
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The future of a controversial compromise that would have allowed not-for-profit religious institutions to skirt federal requirements for providing birth control coverage is being called into question after U.S. Supreme Court Justice Sonia Sotomayor issued a New Year's Eve injunction blocking implementation.

Religious not-for-profits, in the case Little Sisters of Poor v. Sebelius, won a temporary injunction before the provisions went into effect Jan. 1 against implementing new federal rules mandating insurance coverage of contraception. On Friday, HHS files legal briefs in response to that ruling, after which either Sotomayor or the full court will make a subsequent decision on maintaining the temporary stay.

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Allowing the injunction to stand would bring the Little Sisters case to the full court where not-for-profit religious organizations probably stand a better chance than for-profit groups of winning a challenge, a leading legal expert said. That's because not-for-profits would have an easier time qualifying for protection under the Religious Freedom and Restoration Act, said James Blumstein, a professor of constitutional and healthcare law at Vanderbilt Law.

“It will be easier for the nuns to establish that they are covered by RFRA. The question is whether their beliefs are being impaired,” Blumstein said. Sotomayor “is probably asking the government, what is the harm to the government by putting this off for six months until the Hobby Lobby case is decided? The status quo is what she maintained.”

The justices have already agreed to hear cases involving Hobby Lobby Stores of Oklahoma City, and Conestoga Wood Specialties Corp. of East Earl, Pa., private, for-profit companies whose owners say their religious freedoms were violated when the HHS required most private companies to provide insurance that included preventive health services, including FDA-approved birth control.

Dozens of other cases presenting the same question are pending in lower courts. The Little Sisters litigation, in contrast, is part of a separate group of cases involving not-for-profit religious organizations that don't meet an exemption to the law crafted by the HHS for houses of worship. That group of cases also includes dozens of Catholic-run charities and hospitals.

The Patient Protection and Affordable Care Act mandated that most health plans cover preventive health services, which was determined by HHS to include birth control, sterilization and all forms of birth control approved by the Food and Drug Administration.

Hundreds of thousands of organizations submitted public comments on the rules, prompting the Obama administration to compromise and announce that religious not-for-profits could claim moral opposition to the rule and then sign forms to have an outside company administer the benefit to employees without passing on the costs to the rest of the health plan. While the U.S. Conference of Catholic Bishops opposed that compromise, the Catholic Health Association told members that it was satisfied with the accommodation.

Little Sisters of the Poor, a national chain of Catholic nursing homes, and their insurance provider, Christian Brothers Services, argue that the contraception regulations illegally force nuns to defy their religious teaching.

The lead plaintiffs in the case are the Little Sisters' homes in Denver and Baltimore, though the case is a class-action seeking to represent hundreds of religious organizations for which Christian Brothers handles employee benefits.

In the waning hours of Dec. 31, Sotomayor—whose jurisdiction includes Denver, where the case was filed—issued an emergency injunction blocking the rules from going into effect for the Little Sisters and its insurer, and then gave the Obama administration three days to submit a written response.

The Little Sisters say (PDF) the rules violate the Religious Freedom and Restoration Act, as well as constitutional guarantees of free speech and free exercise of religion.

Sotomayor's order came just four days after a Denver trial court ruled against the nursing homes, but the quick timing by the justice just before the Jan. 1 policy deadline saved homes from potentially being exposed to millions of dollars in penalties per year for failing to comply with the law.

“The Little Sisters were only a few days out from these ruinous fines,” said Daniel Blomberg, counsel to the Becket Fund for Religious Liberty, which is representing Little Sisters as well as Hobby Lobby. More time is needed to make employee benefit changes, he contended. “This isn't the kind of thing that you can turn on a dime. These are like aircraft carriers, you need a long time to make a turn,” he said.

Ron Pollack, executive director of pro-healthcare reform organization Families USA, said neither the Hobby Lobby nor the Little Sisters cases will sink the ACA, even if the administration loses.

“Might it have some minor impact in some of the partisan politics of 2014? Maybe,” he said. “These issues are of significance for women who care about reproductive rights and religious institutions that feel their rights impinged on. But I don't see this undermining the ACA.”

Follow Joe Carlson on Twitter: @MHJCarlson


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