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Health Care

Supreme Court Blocks Enforcement Of Birth Control Mandate

WASHINGTON, D.C. — (Mealey’s) The U.S. Supreme Court on Jan. 24 enjoined the federal government from enforcing the birth control mandate contained in the Patient Protection and Affordable Care Act (PPACA) against an order of Catholic nuns pending final disposition of an appeal by the 10th Circuit U.S. Court of Appeals (Little Sisters of the Poor Home for the Aged, et al. v. Kathleen Sebelius, et al., No. 13A691, U.S. Sup.) [enhanced opinion available to subscribers]. 

To meet the condition for injunction pending appeal, the applicants need not use a self-certification form prescribed by the government stating their objections to the mandate and need not send copies of the form to third-party administrators, but may instead inform the secretary of Health and Human Services in writing that they are nonprofit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services. 

Denial Challenged 

Little Sisters of the Poor are a group of Denver nuns who run nursing homes for the poor.  They sued the federal government in the U.S. District Court for the District of Colorado, challenging the birth control mandate, which requires all group health plans and health insurance issuers that offer non-grandfathered group or individual health coverage to provide coverage for certain preventive services without cost sharing, including, “all Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.”

Certain exemptions exist for religious employers.  Nonprofit religious organizations that do not qualify for the exemption may qualify for an accommodation.  Under the accommodation, a nonprofit religious organization can self-certify to its health insurance issuer that it has a religious objection to providing coverage for contraceptive services as part of its health insurance plan.  Once the issuer receives the self-certification, the nonprofit organization is exempt from the mandate.  The organization’s employees will receive coverage for contraceptive services, but that coverage will be provided directly through the issuer.  The coverage is excluded from the employer’s plan of benefits, and the issuer assumes the full costs of coverage and is prohibited from charging any co-payments, deductibles, fees, premium hikes or other costs to the organization for its employees. 

Under the regulations, the nuns are eligible for an accommodation but contend that signing a form stating their objections and providing it to their third-party health insurance administrator makes them complicit in providing contraceptive coverage and violates their religious beliefs. 

On Dec. 27, the plaintiffs were denied a preliminary injunction.  On Dec. 31, they asked Justice Sonia Sotomayor for an injunction pending appellate review by the 10th Circuit.  The federal government opposed the emergency injunction pending the appellate review. 

In a two-sentence order issued Dec. 31, Justice Sotomayor temporarily enjoined the federal government from enforcing the mandate and related regulations against the plaintiffs.  The ruling applied to Little Sisters and more than 200 other faith-based groups that use insurance offered by Christian Brothers Employee Benefit Trust.  

No Views On Merits 

The latest order comes from the full court and enjoins the government from enforcing the mandate until the 10th Circuit rules on the Little Sisters’ appeal of the denial of their injunction.  The Supreme Court stated that it should not be construed as an expression of the court’s views on the merits. 

Mark Rienzi, Daniel Blomberg and Adele Keim of The Becket Fund for Religious Liberty in Washington, Carl C. Scherz and Seth Roberts of Locke Lord in Dallas and Kevin C. Walsh of University of Richmond School of Law in Richmond, Va., represent the plaintiffs. Assistant Attorney General Stuart F. Delery, U.S. Attorney General John F. Walsh, Director Jennifer Ricketts, Deputy Director Sheila M. Lieber and Michelle R. Bennett, all of the U.S. Justice Department in Washington, represent the government.                                            

Amici American Association for Justice and the Pennsylvania Association for Justice are represented by Clifford A. Rieders of Rieders, Travis, Humphrey, Harris, Walters & Waffenschmidt of Williamsport, Pa. 

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