Friday, January 24, 2014

Court Offers Conditional, Temporary Relief from Contraception Mandate

The Supreme Court today ordered that the government exempt Little Sisters and like organizations from the contraception mandate in Obamacare if the non-profit organization states "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 ruling is a conditional, partial, and temporary victory for Little Sisters against the government's attempts to accommodate non-profit religious organizations under the contraception mandate. 

Recall that the Little Sisters organization challenged the accommodation procedure for the contraception mandate under the Religious Freedom Restoration Act.  That procedure requires organizations like Little Sisters--that is, non-profit religious organizations, but not religions--to certify to their third-party administrator that they have a religious objection to the contraception mandate in order to escape providing the coverage directly.  If Little Sisters so certified, its insurance administrator would have to provide contraception without direct cost or involvement of Little Sisters, thus building a fire wall between the organization and the contraception coverage.  But Little Sisters argued that the accommodation procedure itself (let alone the contraception mandate) violated its religious freedom, because the certification procedure amounted to authorizing a third party to provide contraception in violation of the group's religious beliefs.

The district court denied the claim.  Little Sisters appealed and filed for an injunction pending appeal.  The Tenth Circuit denied the injunction, but Justice Sotomayor, the Tenth Circuit Justice, issued a stay against the government.  The Court's order today represents the views of the full Court.

The order grants an injunction, but only conditionally, and only temporarily.  It says that Little Sisters has to certify to the Secretary of HHS that it's a non-profit and that it has a religious objection to the contraception mandate.  Moreover, it only grants an injunction "pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit"--that is, until the Tenth Circuit issues its final ruling.  (That's not to say that the injunction couldn't be renewed pending appeal to the Supreme Court.)

The effect of today's order is to allow Little Sisters to avoid the contraception mandate entirely (as compared to simply putting it on its third-party insurer or administrator, as under the government's certification accommodation) if they properly certify to the Secretary of HHS. 

The Court was careful to say that its ruling today isn't a sign how the Court feels about the merits.

Here's the entire text:

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 respondents are 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 Tenth 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.

http://lawprofessors.typepad.com/conlaw/2014/01/court-offers-conditional-temporary-relief-from-contraception-mandate.html

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