- The Washington Times
Friday, January 3, 2014

The U.S. government said Friday that a Colorado congregation of Catholic nuns had no reason to seek and obtain an 11th-hour Supreme Court reprieve from an Obamacare rule that requires employers to insure contraception.

Justice Department attorneys filed court papers in the case, the Little Sisters of the Poor Home for the Aged v. Sebelius, that say the plaintiffs get their insurance services from the Christian Brothers Employee Benefit Trust, a religiously affiliated administrator that is not required to facilitate contraceptive coverage.

“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,” Solicitor General Donald Verrilli wrote. “The application should be denied.”

But the sisters say that even signing a waiver will violate their beliefs by making them complicit in allowing their employees to obtain contraception.

“The fight right now is over this form,” said Eric Rassbach, deputy general counsel for the Becket Fund for Religious Liberty, which is representing the sisters.

The dispute, in some ways, boils down to perspective — the government says the form lets the sisters opt out of covering contraceptives, while the plaintiffs say it requires them to authorize the coverage.

Justice attorneys pushed back at their arguments by arguing the nun’s group is creating a problem that doesn’t exist.

The church plan at hand is exempt from the mandate, so the plan’s “third-party administrator therefore will be under no legal obligation to provide the coverage after applicants certify that they object to providing it.”

“Given these circumstances, applicants’ concern that they are ‘authorizing others’ to provide coverage lacks any foundation in the facts or the law,” the Justice Department said.

Mr. Rassbach said the government is obfuscating the facts, because one of the third-party administrators that handles pharmacy claims for their plan, Express Scripts, does not hold a religious objection to contraceptives.

Advocates for the nuns had applauded an eleventh-hour order by Supreme Court Justice Sonia Sotomayor this week to temporarily block a requirement under the Affordable Care Act to insure birth control procedures.

The temporary injunction, issued just hours before Justice Sotomayor helped usher in the new year in New York City’s Times Square, said the U.S. Department of Health and Human Services was blocked “from enforcing against [the Little Sisters of the Poor] the contraceptive coverage requirements imposed by the Patient Protection and Affordable Care Act.”

The Justice Department had until Friday morning to respond, and pro-life groups did not like what they had to say.

Marjorie Dannenfelser, president of the Susan B. Anthony List, an anti-abortion group, said the administration “once again makes clear its intention to steamroll religious liberty and freedom of conscience, even for an order of nuns singularly dedicated to providing charitable care for the aged and infirm.”

The administration’s attorneys noted that Little Sisters is in a different situation than for-profit entities that sued over the contraception mandate. The Supreme Court has agreed to rule on a pair of cases brought by for-profit companies with religiously devout owners, after the circuit court split on whether how the mandate should apply to them.

For religious nonprofits, the Obama administration offered an “accommodation” that divorces the employer from having to manage or pay for contraceptive coverage by having an insurers or third-party administration do it for them.

Many religious groups remain unsatisfied by the accommodation, and America’s Catholic bishops recently urged President Obama to consider a reprieve, considering all of the other breaks it’s given to groups who have run into problems with the new health care law.

“I understand that legal issues in these cases will ultimately be settled by the Supreme Court. In the meantime, however, many religious employers have not obtained the temporary relief they need in time to avoid being subjected to the HHS mandate beginning January 1,” Archbishop Joseph E. Kurtz of Louisville wrote Dec. 31 on behalf of the U.S. Conference of Catholic Bishops. “I urge you, therefore, to consider offering temporary relief from this mandate, as you have for so many other individuals and groups facing other requirements under the ACA.”

• Tom Howell Jr. can be reached at thowell@washingtontimes.com.

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