Contraception challenge: “Little Sisters” have no case

Sarah Posner at Religion Dispatches has been covering the challenge by the Roman Catholic Church order, Little Sisters of the Poor, to the contraception mandate in the Affordable Health Care Act:

In the latest development in the Little Sisters of the Poor’s lawsuit challenging, under the Religious Freedom Restoration Act, the contraception benefit coverage under the Affordable Care Act (ACA), the government today filed its brief in the Supreme Court.

To recap briefly: in a flurry of activity at the end of the year, just before the regulations went into effect January 1, a district court in Colorado denied the Little Sisters’ motion for a preliminary injunction; the Court of Appeals for the Tenth Circuit affirmed that decision; and Justice Sonia Sotomayor granted Little Sisters’ emergency application for a stay of that decision, ordering the Department of Justice to file a brief in response.

In its brief, the government argues the plaintiffs “have no legal basis to challenge the self-certification requirement or to complain that it involves them in the process of providing contraceptive coverage.” Both the insurer and the third-party administrator are exempt, the government argues, and even if they were to suddenly decide that they would provide the coverage, Little Sisters’ employees would receive the coverage despite Little Sisters’ objections, not because of them. But because the Christian Brothers entities have said they will under no circumstances provide the coverage, the Little Sisters, the government argues, don’t have an argument that they are “authorizing others” to provide the coverage by filling out the self-certification form.

Read the rest here.

Amanda Marcotte, in Slate, writes that granting a stay does not mean Justice Sotomayor necessarily agrees with the Little Sisters of Poverty.

These groups are arguing that filling out a form is a violation of their religious freedom and that “religious freedom” means that you should have control over your employee’s health care decisions even when they happen outside of the insurance coverage you directly provide for them. Even the lawyer for one of the groups, the Little Sisters of the Poor Home for the Aged, admits that this lawsuit is about trying to weasel out of nothing more onerous than signing a piece of paper.

It’s important not to read too much in Sotomayor’s willingness to grant these groups a temporary injunction from signing a piece of paper. The injunction is only to allow the status quo to continue until the case gets heard in court. That won’t be great for the employees of these groups, who will have to continue without employer-provided contraception coverage and will also be unable to get coverage directly from their insurance companies, but it doesn’t necessarily mean that the court is siding with the Sisters on this one.

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