Strong signals that nursing homes will win case against the contraception mandate, lawyers say

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A Supreme Court ruling handed down earlier this week bolstered a legal case being pursued by The Little Sisters of the Poor, according to attorneys for the nonprofit nursing home operator. However, other experts said the opposite in an analysis of the rulings published Tuesday.

The Little Sisters of the Poor object to the Affordable Care Act's "contraception mandate," which calls on employers to provide insurance coverage for certain forms of birth control. The Christian owners of the Hobby Lobby chain of craft stores also objected to the mandate, and the Supreme Court found in their favor in a 5-4 ruling announced Monday.

While Hobby Lobby is a for-profit company, the justices' reasoning bodes well for the Little Sisters and other nonprofits, said Lori Windham, senior counsel for The Becket Fund for Religious Liberty and counsel for Hobby Lobby. The Becket Fund also is representing the Little Sisters.

The high court “rejected the government's argument” that because “only third parties use the drugs,” the mandate does not place a burden on the Hobby Lobby owners' religious liberty, the Becket Fund noted in a press release. The majority opinion also stated that the government could simply pay for the contraceptives in question rather than requiring employers to do so.

These principles should apply to the nonprofits as well, according to Windham. This means “the handwriting is on the wall” and the Little Sisters should be victorious, she said.

However, some elements of the majority opinion could spell trouble for the Little Sisters, according to legal experts quoted in a Religion News Service story that ran in the Washington Post Tuesday.

The issue is that the government already has created a way for nonprofits to opt out of the contraception mandate. The Little Sisters claim that this accommodation is not acceptable, as it still leaves them morally culpable for the provision of contraceptives. 

Justice Samuel Alito's majority opinion suggests the Supreme Court might disagree, according to the Religion News Service analysis. Alito wrote that an opt-out like the one granted to nonprofits “does not impinge on the plaintiffs' religious beliefs … and it still serves [the government's] stated interests.”

If the government continues to pursue the Little Sisters case, it likely would come before the Supreme Court in October, according to The Hill.

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