The High Court and the Contraception Mandate
In the final hours of 2013, Supreme Court Associate Justice Sonia Sotomayor issued an injunction for Little Sisters of the Poor Home for the Aged and the Christian Brothers Service, deciding that until further notice, these organizations do not have to comply with rules for religiously-affiliated non-profits under the contraception mandate implemented on January 1, 2014.
In her order for the injunction last Tuesday, Justice Sotomayor gave the government until 10 a.m. Friday, January 3rd, to respond. In the memorandum filed on Friday morning, Solicitor General Donald Verrilli argued that since the insurer, Christian Brothers Employee Benefits Trust, has a “church plan” under ERISA (and is therefore fully exempt), neither the insurer, Christian Brothers, nor the religious non-profit employer, Little Sisters of the Poor, would have to provide contraception care. This is similar to the argument the government used when this case was heard in the 10th Circuit. Little Sisters qualifies as a religious non-profit and therefore would have to self-certify to be accommodated.
January 1st marked the implementation of the government’s accommodation of religiously-affiliated non-profits that do not wish to provide contraception coverage to employees because it violates their faith teachings. In such cases, they will have to self-certify their religious status to the government to avoid fines, and provide a copy of that certification to their insurer. From that point forward, the health insurance company or a third-party insurer provides full contraceptive preventive care for employees.
The nuns of Little Sisters of the Poor object to self-certification, stating that requiring them to sign such a document is a substantial burden on their religious freedom under the Religious Freedom Restoration Act. To them, the self-certification process translates to latent acquiescence for something they strongly oppose.
Many religious non-profit organizations are contesting the accommodation, but most do not face opposition from the government on basis of standing due to the religious status of the insurer. For example, the University of Notre Dame filed suit to oppose the accommodation, but after many rounds of being refused an injunction, the university has decided to comply with the rules under the contraception mandate pending further judicial review.
Keep in mind the distinction between the religious non-profit cases in which accommodation is being objected to, and the Hobby Lobby and Conestoga cases, which question the contraception mandate applied to for-profit organizations, already before the Supreme Court.
Stay tuned for more information on this case as it moves forward!