The Obama administration has responded to Supreme Court Justice Sonia Sotomayor’s temporary reprieve of the birth control mandate for a Catholic organization. In the administration’s filing on Friday, the Justice Department said that because Little Sisters of the Poor could “opt out” of the mandate, there was no “substantial burden” on the practice of the nuns’ religion. It also urged the Supreme Court not to delay the implementation of the birth control mandate.
Under the Affordable Care Act, employers must provide birth control as part their health insurance programs. When religious groups said this violated their principles, the Obama administration agreed to let employees of religiously affiliated organization access birth control directly from their insurer, circumventing the workplace.
“With the stroke of their own pen, applicants can secure for themselves the relief they seek from this Court — an exemption from the requirements of the contraceptive-coverage provision — and the employer-applicants’ employees (and their family members) will not receive contraceptive coverage through the plan’s third-party administrator either,” the solicitor general, Donald B. Verrilli Jr. wrote. CBS carried a portion of the brief.
The argument put forth by Little Sisters “lacks any foundation in the facts or the law,” Verrilli said. He concluded that the proper course for the case was through the appeals process, with no injunctions before being heard by the Supreme Court. The court can decide to extend the injunction while the case works its way through lower courts or hear arguments immediately.
Little Sisters and the Becket Fund for Religious Liberty, the group’s legal representation, disagree. Mark Rienzi, senior counsel in the case, gave a statement published by The Wall Street Journal. ”The government demands that the Little Sisters of the Poor sign a permission slip for abortion drugs and contraceptives,” Rienzi said.
In the Little Sisters case, Little Sisters of the Poor Home for the Aged, Denver, Colorado, A Colorado Non-Profit Corporation, et al v. Kathleen Sebelius, Secretary of Health and Human Services, the groups represented argue the mandate is contradictory to their functions and beliefs.
Catholic employers, the suit explains, “are forbidden by their religion from participating in the federal government’s regulatory scheme to promote, encourage, and subsidize the use of sterilization, contraceptives, and drugs that cause abortions.” Organizations like the Christian Brothers Trust and Christian Brothers Services “exist precisely to provide benefits to the class members and other Catholic institutions in accordance with those religious principles,” a “mission” the mandate makes “largely illegal,” the suit says.
Sotomayor will not have to decide the course of action, given the government’s response.