Under the U.S. Supreme Court: Little Sisters jab, still no KO

WASHINGTON, Feb. 2 (UPI) -- A U.S. Supreme Court order late last month protecting the Little Sisters of the Poor from the immediate effects of the Affordable Care Act's contraception mandate is being hailed as a triumph for the religious order. But the outcome may leave the average person wondering what has been gained.

The good sisters, who operate non-profit nursing homes in Baltimore and Denver for the elderly poor, refused to sign a form which eventually would have passed on the responsibility for providing free contraception insurance coverage to insurers.

Merely to sign the form, they said, would involve them in a system that provides contraception, even though an insurance company would have to pay for it.

Besides their overall opposition to contraception, the sisters consider the morning-after pill, which prevents sperm from joining an egg, an abortion-inducing drug.

The dispute involving the sisters is separate from the two cases set to be heard March 25 in the U.S. Supreme Court on whether the owners of "closely held" for-profit companies can refuse to provide contraception coverage for women employees, as required by the act's contraception mandate, because of the owners' religious beliefs.

The outcome in those two consolidated cases, as well as the outcome of the sisters' challenge, may determine whether the Affordable Care Act, better known as Obamacare, survives even in piecemeal form.

The mandate is not in the language of the Affordable Care Act, but in regulations issued by the Department of Health and Human Services implementing the act.

Churches, their "integrated auxiliaries," and conventions or associations of houses of worship are exempted from having to provide their female employees with contraception coverage. Religious institutions not affiliated with a house of worship, such as hospitals, charities or schools -- or in the sisters' case, nursing homes -- are not exempt, but under a compromise offered by the administration do not have to pay for contraceptive coverage. Insurers do.

But those religious institutions included in the compromise are supposed to sign a form indicating they object to contraception on religious grounds to be included in that category.

"I certify that, on account of religious objections," the form says in part, "the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered; the organization is organized and operates as a non-profit entity; and the organization holds itself out as a religious organization."

As the Jan. 1 deadline approached, the Little Sisters of the Poor and the Christian Brothers Employee Benefit Trust applied to the U.S. Supreme Court for an 11th-hour injunction. Nearly 500 Catholic non-profit ministries provide employee benefits through the trust.

"In less than 10 hours, a regulatory mandate promulgated under the Patient Protection and Affordable Care Act will expose the Little Sisters of the Poor to draconian fines unless they abandon their religious convictions and participate in the government's system to distribute and subsidize contraception, sterilization and abortion-inducing drugs and devices," the sisters' application told the court.

"The Little Sisters are an order of Catholic nuns whose religious faith leads them to devote their lives to caring for the elderly poor. Not surprisingly, they have sincere and undisputed religious objections to complying with this mandate," the application said. "Yet they were denied relief by the [U.S.] District Court for the District of Colorado ... and ... by a motions panel of the 10th Circuit Court of Appeals. Without an emergency injunction, Mother Provincial Loraine Marie Maguire has to decide between two courses of action: (a) sign and submit a self-certification form, thereby violating her religious beliefs; or (b) refuse to sign the form and pay ruinous fines."

The sisters said they would have to pay $6,700 a day in fines, while all the organizations in the trust would have to pay about $1 million a day after the Jan. 1 deadline.

In its own brief to the Supreme Court, the Obama administration said neither the Little Sisters nor the Christian Brothers trustee would be required to provide contraception coverage. Just sign the little form.

Justice Sonia Sotomayor, who oversees the 10th Circuit, which includes Colorado, came to the rescue, issuing a temporary injunction. Sotomayor is one of six Catholics on the high court.

Sotomayor enjoined the contraception mandate's enforcement as applied to the parties in the case -- the Little Sisters of the Poor and the Christian Brothers Employee Benefit Trust.

On Jan. 24, the other shoe dropped. The entire U.S. Supreme Court issued an order protecting the sisters until the federal appeals court in Denver acts. There were no dissents. But the order specifically said the high court was not indicating how it would eventually rule.

"The application for an injunction having been submitted to Justice Sotomayor and by her referred to the court, the court orders: If the employer applicants inform the secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services," the Supreme Court said, the Obama administration is "enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the 10th Circuit. To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the government and need not send copies to third-party administrators. The court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the court's views on the merits."

Which may leave the average person scratching his or her head.

If signing the form unacceptably involves the sisters in the governmental apparatus that may lead to contraception insurance coverage, does notifying Health and Human Services Secretary Kathleen Sebelius of their religious objections, even though it spares them for the moment, amount to essentially the same thing?

After all, the Little Sisters already had obtained a preliminary injunction from Sotomayor.

Emily Bazelon, writing in the online magazine Slate, also appeared puzzled.

"The Supreme Court said ... the Little Sisters of the Poor don't have to fill out the Obamacare form for non-profit religious groups seeking an accommodation to the contraception mandate," Bazelon wrote. "Instead, in order to get the exception, Little Sisters, which provides housing to elderly people in need, essentially has to provide the same information to the Department of Health of Human Services in a ... form [or maybe it's a letter?] the court devised itself. Got that? I know, it sounds weird, but that's pretty much the upshot of the court's three-sentence order, which will remain in effect until the 10th Circuit Court of Appeals rules in the case."

SCOTUSBlog.com's Lyle Denniston pointed out the practical difference between signing the form and writing the same thing to Sebelius. The Supreme Court order relieved the sisters temporarily of the requirement to sign the form and send it on to its insurance plan's trustee, but "the justices did give the federal government something, too. The government, in resisting the Little Sisters' challenge, had said that the government has to have some workable mechanism that religious groups can file in order to be let out of the mandate's obligation.

"The justices supplied that with the requirement that the Little Sisters make a written declaration [the court did not say what exact format it must have] that they are seeking an exemption."

Denniston said presumably that was more acceptable to the good sisters "because under the ACA only a properly filled-out Form 700 could lead to actual coverage of the contraceptive services included in the mandate."

Despite the many hurdles ahead, the Becket Fund for Religious Liberty, which is helping the Little Sisters at the Supreme Court, said it was happy with the high court action.

"We are delighted that the Supreme Court has issued this order protecting the Little Sisters," Mark Rienzi, senior counsel for the fund, said in a statement. "The government has lots of ways to deliver contraceptives to people -- it doesn't need to force nuns to participate."

The statement said injunctions already have "been awarded in 18 of the 19 similar cases in which relief had been requested."

"Virtually every other party who asked for protection from the mandate has been given it," Rienzi said. "It made no sense for the Little Sisters to be singled out for fines and punishment before they could even finish their suit."

It's hard to say how the Little Sisters' appeal will fare in federal appeals court in Colorado. A federal judge and the 10th U.S. Circuit Court of Appeals' motions panel in Denver already have denied a stay, which is why the sisters turned to the U.S. Supreme Court.

But the 10th Circuit earlier ruled Oklahoma City's Hobby Lobby and companies like it may assert a free exercise of religion claim to fight the contraception mandate, even though it is a secular for-profit company.

The Hobby Lobby case is one of the two accepted by the U.S. Supreme Court for argument in March.