Tuesday, January 7, 2014

Government Responds in Contraception Mandate Case

The government on Friday filed its response on the emergency application for an injunction pending appeal at the Supreme Court in the Little Sisters case.  That case tests whether the Obama administration's accommodation for non-profit, religious-affiliated organizations from the "contraception mandate" in Obamacare violates the Religious Freedom Restoration Act.  (This case is different than the Hobby Lobby case, testing whether the "contraception mandate" violates religious freedom of for-profit, non-religious companies.  That case is headed for the Supreme Court.)

We posted most recently on the issue (in another case) here.

Recall that the administration's accommodation allows religious-affiliated non-profits to escape the "contraception mandate" by certifying that they have a religious objection to the mandate.  Then their third-party administrator ordinarily must provide or arrange separate payments for contraception, costs to be reimbursed through an adjustment to federally faciliated exchange user fees.  This accommodation builds a kind of fire-wall between the organization and the third-party administrator's provision of contraception to the organization's employees.

Dozens or scores of organizations balked, however, claiming that the self-certification process violates their religious freedom--on the theory that self-certification is really just an authorization for another party to provide contraception, something that their religious beliefs forbid.  Lower courts are split on whether the accommodation violates the RFRA.

In the Little Sisters case, the district court concluded that the accommodation did not substantially burden the organization's religious liberties--in particular, that the self-certification requirement wasn't a burden, and that the organization's third-party administrator declined to provide coverage, anyway (see below).  The Tenth Circuit denied an injunction pending appeal, but Justice Sotomayor last week issued a stay, prompting DOJ to respond with its Friday filing.

This case is an especially bad test case, though.  That's because Little Sisters' third-party administrator is exempt from the contraception requirement (as a "church plan" under ERISA), and has said that it won't provide contraception.  In short: Little Sisters certifies, its third-party administrator declines to provide contraception (as it may), and no contraception is provided.  As the government explains:

In this case, however, as both of the lower courts again 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.

https://lawprofessors.typepad.com/conlaw/2014/01/government-responds-to-request-for-injunction-in-contraception-mandate-case.html

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