Nursing home does not need Supreme Court intervention to avoid birth control mandate, feds say

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U.S. Supreme Court
U.S. Supreme Court

The federal government defended the Affordable Care Act's so-called “contraception mandate” Friday in a Supreme Court filing against a Catholic long-term care provider.

The ACA requires that health plans provide birth control to women at no cost to the beneficiary, under preventative health services. Nonprofit organizations opposed to contraception can fill out a form to avoid paying for this coverage, which then will be covered by the insurer. The Little Sisters of the Poor, a Colorado-based group of Catholic nuns, filed a lawsuit against the requirement to fill out the form, which they argue is tantamount to giving employees permission to obtain birth control. The group would face penalties if it refuses to fill out the form.

Hours before the contraception mandate took effect on Jan. 1, Supreme Court Justice Sonia Sotomayor granted the Little Sisters' request for a temporary injunction, preventing the federal government from enforcing penalties while the case is ongoing. Sotomayor gave the Department of Justice until Friday morning to respond.

In its filing, the DOJ argued that the injunction should be lifted.

“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,” the document states.

Furthermore, because the Little Sisters utilize a church health plan that is not regulated by the government, the organization's employees will not have coverage for contraceptives through their employer-based health insurance regardless of the outcome of the litigation, the DOJ argued.

The Little Sisters are asking for an “extreme” amount of control, according to Marcia Greenberger, co-president of the National Women's Law Center.

“Not only are they asking for the authority not to provide it themselves, but [they] want to veto the ability of a commercial insurer to pick up the tab, too, for these women,” she told NPR.

But supporters of the Little Sisters say that the government is overreaching and should not penalize the group for refusing to sign forms that would allow employees to gain birth control coverage through a private plan.

“They just need to be out of the system,” Little Sisters' attorney Mark Rienzi told NPR.

Sotomayor has not indicated when she will make a final decision regarding the injunction.

While the Little Sisters' use of a church health plan makes its case distinct, there are many other nonprofit groups challenging the contraception mandate. Recent rulings generally have been in their favor. The U.S. District Court for the Western District of Oklahoma ruled Dec. 20 that Reaching Souls International Inc., Truett-McConnell College Inc. and GuideStone Financial Resources of the Southern Baptist Convention were likely to prevail in their assertion that the Department of Health and Human Services was placing a burden on their religious rights. In Texas, U.S. District Judge Lee Rosenthal ruled Dec. 27 that Houston Baptist University and East Baptist University also proved that providing contraception would violate its religious principles.

While injunctions currently are in place for these organizations, the Supreme Court will determine whether they ultimately will have to comply with the existing ACA requirements. The court is expected to hear a similar case, brought by the Hobby Lobby chain of craft stores, in the spring. Although Hobby Lobby is a for-profit entity, like the religious nonprofits it is arguing that complying with the contraception mandate would violate core religious principles informing the business.