The Obama administration argued Friday that the Affordable Care Act contains sufficient protections for nonprofits that object to providing health coverage for contraception and urged the Supreme Court to reject an appeal from a Catonsville-based Catholic charity that serves the elderly poor.
Nonprofit religious charities already can opt out of the requirement to pay for insurance coverage for contraceptives and therefore have nothing to complain about, U.S. Solicitor General Donald Verrilli wrote in a brief to the nation's highest court.
Justice Sonia Sotomayor issued a temporary injunction this week to exempt the Little Sisters of the Poor from having to file a form that could allow a third-party administrator to provide the coverage at no cost to the organization.
"With the stroke of their own pen," the nuns and other Catholic charities "can secure for themselves the relief they seek from this court, an exemption from the requirements of the contraceptive-coverage provision," Verrilli wrote in the brief.
But even taking that step violates the group's beliefs, according to Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty, the public-interest law firm representing the charity.
"Unfortunately, the federal government has started the new year the same way that it ended the old one: trying to bully nuns into violating their religious beliefs," Rienzi said in a statement Friday.
The challenge — originally filed by Little Sisters in Colorado — takes on a provision the Obama administration championed to get contraception coverage for employees of organizations with ties to churches or other spiritual groups. The idea was to offer lay workers the chance to buy coverage from the organizations' insurance carriers.
The latest back-and-forth began late last year, when the Becket Fund sued on behalf of the Little Sisters, which runs 30 homes for the poor and elderly around the country and employs more than 50 lay workers. They argued that the health care law — which officially took effect Wednesday — violates the rights of Americans to practice their religious views without government interference.
As originally written, the sweeping new law required all employers open to hiring nonreligious workers to offer insurance covering contraceptive devices and procedures.
Women's health groups had lobbied for the contraception requirement, saying it ensures crucial preventive care for American women. Nearly 60 percent of those who take birth control pills use them at least in part for health benefits, according to the Guttmacher Institute, an organization that aims to advance sexual and reproductive health and rights.
The provision prompted an outcry from some religious and First Amendment rights advocates. Obama administration officials responded by narrowing the requirements. Changes made in the law last year exempt churches, mosques and synagogues from providing any form of contraception coverage.
For church-related organizations, such as hospitals, universities or nursing homes, the administration crafted a compromise: They would not have to provide contraceptive coverage themselves, but employees could get it from their insurers, who could ask for federal reimbursement.
Organizations that want such an accommodation must file a letter with their carriers defining themselves as religious organizations that object to providing such coverage.
At that point, the government argues, the organization would have discharged its obligations, leaving it to a third party to address.
If the government separately rules that the third-party insurance carrier is a "church plan" provider, it can then be exempted from providing the disputed coverage.
The government has already defined Christian Brothers Services, the insurance carrier for the Little Sisters, in this way. That's another reason the Obama administration argued the health care law does not infringe on the charity's religious liberties.
"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 service to which applicants object," Verrilli's brief reads.
But attorneys for Little Sisters on Friday said the nonprofit, uses a second carrier, Express Scripts, to handle pharmaceutical benefits. That carrier, which has no religious ties, has expressed no objection to providing contraceptive drugs, attorneys said.
Regardless, the Little Sisters regard the requirement to file a letter in and of itself as giving the carrier "permission" to do what it chooses not to do.
"They won't sign the certification because it says, 'We authorize you to do this.' It makes them complicit in the action. You don't have to perform an action directly to be liable," said Eric Rassbach, deputy general counsel for the Becket Fund.
Sotomayor, who heard the charity's emergency appeal, now has the option of reconsidering the injunction she granted this week or of referring the matter to the Supreme Court as a whole.
Though there's no timetable for her decision, court observers expect her to make up her mind within a few days.
At St. Martin's Home in Catonsville, where the Little Sisters are headquartered, spokeswoman Sister Constance Veit said the charity and others like it hope to be granted the same kind of full exemption churches already enjoy.
"The government is saying, 'All you have to do is sign the form and pass it [along],' " she said. "We consider that morally objectionable."
Calls of support have been coming in from across the country, Veit said, but the nuns at the facility are nonetheless on edge about where the matter is headed.
"We're praying a lot. We're very anxious about the outcome," she said.