WASHINGTON — Obama administration lawyers strongly urged Justice Sonia Sotomayor and her fellow Supreme Court members to drop an appeal from the Little Sisters of the Poor and other Catholic groups who object to the so-called contraceptive mandate in the new healthcare law.
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 Gen. Donald Verrilli Jr. told the court.
"With the stroke of their own pen," the nuns and other Roman Catholic charities "can secure for themselves the relief they seek from this court, an exemption from the requirements of the contraceptive-coverage provision," he wrote in a brief filed Friday morning. All the group needs to do is file a letter seeking an exemption, he said.
Moreover, because the nuns in the current case get their insurance coverage from another Catholic group that is also exempt from the rule, they have no reason to be concerned that their application for an exemption would cause the insurer to provide contraceptive coverage, the brief said.
The employees of the nursing homes the nuns run in Colorado and their family members "will not receive contraceptive coverage" in any case, Verrilli wrote. "Completion of that certification would result in the complete denial of coverage for the drugs and devices to which [they] object."
The nuns' request for at least a temporary exemption from the contraceptive coverage requirement went initially to Sotomayor because she handles appeals from Colorado and several neighboring states.
Now that both sides have filed their legal arguments, Sotomayor could act on her own or, more likely, refer the issue to the full court. The justices could act at any time, although a decision most likely would come next week.
On New Year's Eve, several lower courts granted temporary reprieves to Catholic groups, shielding them from requirements of the new law. Sotomayor gave a short reprieve to the Little Sisters after the 10th Circuit Court of Appeals, based in Denver, declined to do so.
Lawyers for the groups had said their clients faced "draconian fines" if they failed to provide the contraceptive coverage to which they object, fines that would begin as soon as the law took effect.
But Verrilli said the appeals from those groups were based on a false premise. The healthcare law permits religious groups to opt out of paying for insurance coverage of contraceptives, he said.
Under rules adopted by the administration last year, churches are entirely exempt from the requirement that employers who provide health coverage include birth control as part of the package.
For church-related organizations including hospitals, universities or, in the current case, nursing homes, the administration sought to craft a compromise: They would not have to provide contraceptive coverage themselves, but in many cases their workers or students would be able to get birth control from their insurance carriers.
Some Catholic groups have accepted that compromise, but many, like the nuns in the current case, have not.
Mark Rienzi, a Catholic University of America law professor who represents the Little Sisters of the Poor, sharply disagreed with Verrilli's reading of the law. He said that if the nuns signed the self-certification form to opt out of the mandate, the law would require their insurers to dispense contraceptives. Even though the main insurer for the nuns is a Catholic group plan that is exempt from the law, their drug coverage is handled by a separate company, Express Scripts, which might provide contraceptives, Rienzi said.
The administration's lawyers "are simply blind to the religious exercise at issue," he wrote in his brief to the court earlier this week. The Little Sisters and other Catholic nonprofit groups "cannot execute the form because they cannot deputize a third party to sin on their behalf," he wrote.
Rienzi urged Justice Sotomayor to keep the temporary injunction in place, and he suggested the justices take up the case to decide the issue this year. He noted that there were 45 cases pending in lower courts in which nonprofit groups had challenged the contraceptive requirement on religious grounds.