Don’t delay Obamacare birth control mandate, administration says

The Justice Department on Friday issued its case against Supreme Court Justice Sonia Sotomayor’s New Year’s Eve decision to temporarily block the implementation of the Obamacare mandate for certain religious groups to provide health insurance for employees that includes birth control coverage.

The Little Sisters of the Poor, the Colorado order of nuns who requested the stay, argued that following the Obamacare rule would violate their religious beliefs, even though the Obama administration has offered a compromise route for religious-affiliated nonprofits. However, U.S. Solicitor General Donald Verrilli argued for the Justice Department that the Little Sisters’ argument “lacks any foundation in the facts or the law.”

The nuns’ case should go through the appeals court process without any injunction before the Supreme Court considers it, Verrilli concluded. Now the court must decide whether to extend the temporary injunction or dissolve it while the case goes through the lower courts, or decide to hear the case immediately.

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Verrilli argued that the option for religious nonprofits sufficiently relieves the nuns of any religious burden. Last year, the administration issued a rule that nonprofit faith-based organizations could notify their insurer or third-party administrator if they objected to paying for contraception costs on faith-based grounds. The insurer would then have to provide enrollees with contraceptive coverage through separate individual health insurance policies. Verilli notes that even though Little Sisters’ third-party administrator is a church group exempt from this regulation -- so while it could choose to offer contraceptive coverage, it has already said it won’t.

“With the stroke of their own pen, applicants can secure for themselves the relief they seek from this Court -- an exemption from the requirements of the contraceptive-coverage provision -- and the employer-applicants’ employees (and their family members) will not receive contraceptive coverage through the plan’s third-party administrator either,” Verilli wrote.

Had they failed to sign off on the Obamacare compromise, the order of nuns would have had to pay fines they were financially incapable of accommodating. Sotomayor issued the injunction the evening before the rule went into effect, giving the Little Sisters temporary relief, though it does not apply to other religious-affiliated nonprofits.

The administration already exempts houses of worship like churches or synagogues from the rule requiring contraceptive coverage for employees, and it makes no exceptions for for-profit organizations. There are two cases pending before the Supreme Court from for-profit entities that say their religious freedoms have been violated. Those cases, Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius, are expected to be argued in March and decided in June.