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Nuns already have conscience protections in ACA contraceptive case, Justice Department says


By Joe Carlson
Posted: January 3, 2014 - 2:00 pm ET
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The Justice Department, responding to a temporary Supreme Court injunction, says Roman Catholic nuns running a national chain of nursing homes already benefit from enough conscience protections and so shouldn't need more protection from guidelines that would make contraceptives accessible to their employees.

An order on the injunction in Little Sisters of the Poor v. Sebelius could come from Justice Sonya Sotomayor directly or from the court as a whole.

The Justice Department filed a 38-page brief with the Supreme Court Friday morning asking Sotomayor to undo the temporary injunction she imposed in the waning hours of Dec. 31. The case involves a requirement stemming from the Affordable Care Act requiring insurance coverage for contraceptives scheduled to go into effect for most employers Jan. 1.

A lawyer for the Little Sisters of the Poor nursing homes has said the charity would have started racking up fines totaling more than $2 million a year, starting on Jan. 1, without the order if they didn't comply.

But Friday morning, government lawyers said that claim was simply not true.

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In their filing, Justice Department attorneys said the nuns essentially have no legal standing to challenge the regulation. They would not be required to pay for their employees' contraception expenses because a compromise is in place to forestall that possibility for religious organizations, the Justice Department argued.

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.

Justice Sotomayor's decision to issue the injunction essentially means the court is now considering a second type of challenge to the same regulations regarding FDA-approved contraceptives. For-profit companies already have contested the regulation and the Supreme Court is expected to decide cases involving for-profits by June. The Little Sisters case involves a not-for-profit organization.

“As this case comes to the court, it is not about the availability or adequacy of a religious accommodation, but rather about whether a religious objector can invoke RFRA (the Religious Freedom Restoration Act) to justify its refusal to sign a self-certification that secures the very religion-based exemption the objector seeks,” the Justice Department wrote.

The Justice Department went further, saying that existing federal law also would protect the Little Sisters' third-party benefits administrator, Christian Brothers Services, from having to provide any contraception benefits, either.

That's because the Employee Retirement Income Security Act would prevent the government from mandating changes to the plan as long as the Little Sisters sign the certification that they object to the rules.

The Little Sisters of the Poor runs about 30 nursing homes across the country, including one in Denver, where the charity's lawsuit was initially filed in U.S. District Court. Lawyers for the group make comparisons between their case and two that have been already been granted oral arguments by the Supreme Court protesting the same regulations.

But Justice Department attorneys see the Little Sisters case as distinct from the other two, which involve Hobby Lobby Stores of Oklahoma City and Conestoga Wood Specialties Corp. of East Earl, Pa.

Both of those are for-profit companies whose owners say their religious freedoms were violated by the contraception rules. The cases are framed as questions of whether the RFRA allows company owners to deny their employees insurance coverage of contraceptives.

The analysis doesn't end there, however. The RFRA is a two-part law, the first section of which requires injured parties to prove they're eligible for protection and that they've been injured by a federal law hampering free exercise of religion. The second part forces the government to show that the law was written in the “least-restrictive” means possible to accomplish a worthy government goal.

Although the second phase of the analysis would be similar at for-profits and not-for-profits, the private corporations may find more difficulty in the first phase. That's because the question for the court will be whether for-profit owners' religious beliefs, as expressed in employee-policy handbooks, qualify for protection under the RFRA.

“I think it will be easier for the nuns to establish that they are covered under RFRA. The question is whether their beliefs are being impaired,” Vanderbilt Law School healthcare and law professor James Blumstein said.

Follow Joe Carlson on Twitter: @MHJCarlson


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