The ball is now in Supreme Court Justice Sonia Sotomayor’s court regarding small religiously affiliated groups and the federal requirement to provide health coverage that includes contraception under the Affordable Care Act.
On New Year’s Eve, Sotomayor granted a last-minute temporary ruling that restricted the government from carrying out the Obamacare contraception coverage mandate on a small nursing facility in Denver. Strangely, the issue might be a moot point in the first place since the Justice Department claims that contraception coverage might never have applied to the Little Sisters for the Poor Home for the Aged. The reason for this exception stems from the fact that the nursing home uses a Christian health insurer, which makes it exempt from the contraception coverage requirement that other health plans must abide by.
“Applicants have no legal basis to .. complain that it involves them in the process of providing contraceptive coverage,” said government lawyers conveying to the court, according to Politico. “This case involves a church plan that is exempt from regulation,” which Politico reports is under a 1974 labor law that predates the president’s health care law.
Even if the Denver-based religious organization didn’t happen to fall into this exempt status, the Obama administration expressed that it finds the regulations regarding contraceptive coverage to be fair towards religious organizations. “We defer to the Department of Justice on litigation matters but remain confident that our final rules strike the balance of providing women with free contraceptive coverage while preventing non-profit religious employers with religious objections to contraceptive coverage from having to contract, arrange, pay, or refer for such coverage,” Politico reported a White House official as saying.
The ongoing health care overhaul under the Affordable Care Act requires that contraception coverage is included in an employer’s health insurance with churches being the only entities exempt from this mandate. But religiously affiliated organizations can apply to also be an exception to this rule if they can prove that this aspect of the coverage violates their religious views. A compromise was recently worked out with regard to these specific situations by granting the respective non-profits the right to give insurance companies the go ahead to cover contraception — a process known as “self certification.” This approach is thought to put enough distance between a group’s religious rights while still making sure that contraceptives are accessible to women no matter where they are employed.
So in the case of the challenge raised by the nuns who run the home, they “need only self-certify that they are nonprofit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services,” the administration said in a brief filed with the Supreme Court by the solicitor general, Donald B. Verrilli Jr, The New York Times reports.
But even this solution was still considered a violation of religious rights by the Denver nursing home. “The threat to applicants’ religious freedom derives from the sheer enormity of the government’s pressure on them to forego their religious exercise of not providing coverage for the drugs and devices at issue and not authorizing or helping others to do so,” the lawyers wrote in appealing to Sotomayor, according to Politico.
As it stands now, Sotomayor’s injunction protects the nursing home from government fines, which the government might have a right to implement if the non-profit declines to go along with the self-certification option.