Under the U.S. Supreme Court: The good sisters tangle with Obamacare

WASHINGTON, Jan. 12 (UPI) -- Opponents of the Affordable Care Act -- and they are many and vociferous -- may be asking: Why is the Obama administration beating up on the Little Sisters of the Poor?

But the dispute between the good sisters and the administration over which prevails, the right of women to contraception health insurance coverage or the right of nuns not to participate even tangentially in a system that provides such coverage, is far from black and white.

It may take the wisdom of Solomon to decide this one.

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

The mandate is not in the language of the Affordable Care Act, better known as Obamacare, 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 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. Their insurers have to pay for the coverage.

But those religious institutions included in the compromise have 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."

In an analysis SCOTUSBLOG.com explains the EBSA Form 700 took effect under the Affordable Care Act, and had to be signed by Jan. 1 or organizations faced severe fines. "EBSA" stands for Employee Benefit Security Administration, an agency that helps enforce the healthcare law.

The sisters, who operate non-profit nursing homes in Baltimore and Denver for the elderly poor, refused to sign the form. To do so, they said, would involve them in a system that provides contraception, even though an insurance company would have to pay for it.

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 said.

It would be hard to imagine more sympathetic challengers to the contraception mandate.

"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.

The Little Sisters of the Poor Home for the Aged in Denver and the Little Sisters of the Poor in Baltimore "are part of an international order of Catholic nuns whose religious faith inspires them to spend their lives serving the sick and elderly poor. That same faith also precludes them from participating in the federal government's efforts to subsidize and promote the use of sterilization, contraceptives and abortion-inducing drugs and devices."

The sisters consider the morning-after pill, which prevents sperm from joining an egg, an abortion-inducing drug. The administration says the Affordable Care Act benefits do not include abortions.

The nursing homes "do not meet [the government's] narrow definition of 'religious employers' chiefly because they are not directly owned or controlled by the local Catholic bishops," the application said.

The Religious Freedom Restoration Act of 1993 prohibits the federal government from placing substantial burdens on "a person's exercise of religion," unless government can demonstrate that applying the burden is the "least restrictive means of furthering ... [a] compelling governmental interest."

The sisters see that as a slam dunk, saying they "present a clear and straightforward RFRA claim and, as a result, have an overwhelming likelihood of prevailing on their claim."

At the U.S. Supreme Court, Justice Sonia Sotomayor, who oversees the 10th Circuit, issued an order saying government officials "are temporarily enjoined from enforcing against applicants the contraceptive coverage requirements imposed by the Patient Protection and Affordable Care Act ... and related regulations pending the receipt of a response and further order of the undersigned or of the [full Supreme] Court."

Sotomayor did not enjoin the national enforcement of the contraception mandate, only its enforcement as applied to the parties in the case -- the Little Sisters of the Poor and the Christian Brothers Employee Benefit Trust.

The administration filed its own brief in response.

The sisters and the trust "have no legal basis to challenge the self-certification requirement or to complain that it involves them in the process of providing contraceptive coverage," the response said.

"As both of the lower courts recognized, this case involves a church plan that is exempt from regulation under the Employee Retirement Income Security Act of 1974 [ERISA]. ... Employer-applicants' third-party administrator [the trust] therefore will be under no legal obligation to provide the coverage after applicants certify that they object to providing it. If employer-applicants' third-party administrator were nevertheless to decide to provide contraceptive coverage, applicants' employees and their covered dependents would receive such coverage despite applicants' assertion of their religious objections, not because of those objections."

But as both lower courts recognized, "the third-party administrator of applicants' church plan says it will not provide contraceptive coverage. As a result, a signed certification will discharge all employer-applicants' responsibilities under the contraceptive-coverage provision, and their employees will not receive such coverage from the third-party administrator. Given these circumstances applicants' concern that they are 'authorizing others' to provide coverage lacks any foundation in the facts or the law.

"In sum," the response said, "applicants claim a right to extraordinary relief even though compliance with the procedure they challenge will not result in anyone else's provision of the items and services to which applicants object. Nothing in [the Religious Freedom and Restoration Act] supports such a sweeping claim, and applicants' right to relief in these circumstances is certainly not 'indisputably clear" ... The application should be denied."

The good sisters ping-ponged back to the high court a reply to the response.

"The temporary injunction issued [by Sotomayor on New Year's Eve] saved Mother Provincial Loraine Marie Maguire from the choice of violating her faith by executing the government's required form, or exposing the Little Sisters' ministry to decimation by [Internal Revenue Service] penalties [levied for failing to conform to the mandate]. She exercised her religion that night, and each day since, by acting in accordance with God's will as she understands it. The temporary injunction protected, and continues to protect, that religious exercise. ... The Little Sisters' chance to exercise religion now -- a right guaranteed by federal law -- will be lost forever if not protected today. It will be cold comfort to the Little Sisters to learn that they may be able to resume exercising their religion in the future."

The resolution now lies with Sotomayor, or, if she refers it for a vote, to the entire Supreme Court.