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Justice Dept. Urges Supreme Court To Drop Contraception Injunction; NYT Editorial Calls Stay Unjustified

Justice Dept. Urges Supreme Court To Drop Contraception Injunction; NYT Editorial Calls Stay Unjustified

January 3, 2014 — The Department of Justice on Friday asked the Supreme Court to lift a temporary injunction against the federal contraceptive rules for an order of nuns and other Catholic-affiliated organizations, noting that the groups would not have to provide the coverage regardless of the stay, NBC News reports (Fox, NBC News, 1/3).

The contraceptive coverage rules, which are being implemented under the Affordable Care Act (PL 111-148), require most employers to offer coverage to their workers. Houses of worship are exempt from the requirement, and religiously affiliated not-for-profits are eligible for an accommodation that ensures they do not have to pay for or directly provide the coverage for their employees. Private companies are not eligible for an exemption or accommodation.

Supreme Court Justice Sonia Sotomayor granted the temporary injunction Tuesday in a class action suit filed on behalf of the Little Sisters of the Poor Home for the Aged and several other organizations providing care for the elderly. Although the plaintiffs are eligible for the accommodation for not-for-profit religious employers, they argued in the suit that they still "would be required to actively facilitate and promote the distribution of these [contraception] services in ways that are forbidden by their religion."

Sotomayor acted after a lower court on Monday denied the plaintiffs' request for an emergency stay. Sotomayor gave the federal government until Friday morning to respond.

DOJ Response

The government in previous briefs cited an insurance law known as ERISA, under which the health plan administrator for the Little Sisters is classified as a church organization, meaning that it is not required to provide the contraceptive coverage (Women's Health Policy Report, 1/2).

DOJ echoed that argument in its response Friday, writing that the plaintiffs have no legal basis to challenge the rules (Hurley, Thomson Reuters Foundation, 1/3).

"[A]pplicants' concern that they are 'authorizing others' to provide coverage lacks any foundation in the facts or the law," DOJ wrote (NBC News, 1/3).

Next Steps

According to the Thomson Reuters Foundation, Sotomayor will now decide whether to extend the injunction while the case proceeds in the lower courts. She could also refer the case to the entire Supreme Court to consider the injunction. The high court is not under any deadline to make a decision (Thomson Reuters Foundation, 1/3).

Injunction Should Be Lifted, New York Times Editorial Argues

"A careful review of the [Little Sisters' case] should persuade Justice Sotomayor and her Supreme Court colleagues ... that the alleged threat to religious liberty is nonexistent and the stay should be lifted while litigation proceeds in the lower courts," a New York Times editorial states.

The plaintiffs object to the requirement that they "sign a short form certifying that they have religious objections to providing coverage for contraceptive services," which the Little Sisters contend "infringes on religious exercise in violation of the Religious Freedom Restoration Act [PL 103-141]," the editorial explains. Under RFRA, the government cannot "'substantially burden a person's exercise of religion' unless the government demonstrates that the burden is the least restrictive means of furthering a compelling interest," the Times notes, arguing that the "certification requirement ... does not rise to a substantial burden."

Further, the Little Sisters' health plan qualifies as a self-insured church plan, which, under a federal insurance law called ERISA, cannot be compelled by the government to provide contraceptive coverage, the editorial states.

"Like the cases of the private employers [challenging the mandate], the suit by the nuns' group boils down to an unjustified attempt by an employer to impose its religious views on workers," according to the editorial (New York Times, 1/2).