Supreme Court Justice Sonia Sotomayor will decide the next step in the fight over Obamacare contraception coverage, after the Obama administration Friday asked the court not to block the rule for a Denver nursing facility, arguing that the home run by Catholic nuns is already protected from the requirement.
On New Year’s Eve, Sotomayor granted the nursing home a last-minute, temporary reprieve from the coverage requirement in the health care reform law. She will now have to decide whether to keep the temporary order in place, dissolve it, or take the issue to the other justices, who could decide to review the whole case in the coming months.
Justice Department lawyers in their response Friday said that employees at the Little Sisters for the Poor Home for the Aged might never have received the contraception coverage most health plans are now required to provide under the Affordable Care Act. That’s because the nursing home uses a Christian health insurer that is recognized as a church under U.S. employment law and is already exempt from the contraception rule.
(Earlier on POLITICO: White House stands by birth control rule)
“Applicants have no legal basis to … complain that it involves them in the process of providing contraceptive coverage,” government lawyers wrote to the court.“This case involves a church plan that is exempt from regulation” under a 1974 labor law that predates the president’s health care law.
No matter which path Sotomayor takes, the central questions on contraception and religious nonprofits could eventually work its way through the legal system and return to the high court through this case or a different one.
The court has already agreed to take two separate challenges to the contraceptive requirement, but they involve religious owners of for-profit businesses, not religious nonprofits like this Denver nursing home. Dozens of religious-affiliated groups, dissatisfied with the Obama administration’s attempts to address their concerns, have petitioned federal courts to eliminate the requirement.
Anything the court does in the Little Sisters case could also affect nearly 500 religious non-profits that work with the Little Sisters and others on the lawsuit.
(PHOTOS: Who’s who on the Supreme Court)
In all, more than 90 legal challenges have been filed around the country. A Supreme Court decision against the contraceptive rule would undercut but not cripple the health law. The birth control rule is a small piece of the overall law, but it’s been yet another source of ongoing political controversy for President Barack Obama’s signature law.
The Obama administration argues that employer health plans need to include contraception to ensure that women and their babies are healthy. Opponents of the policy — notably, the Catholic bishops — say that the administration is requiring some businesses to forgo religious beliefs against the use of contraception.
The case brought by the Little Sisters of the Poor Home for the Aged falls into an unexpected loophole in the ACA’s contraception coverage.
Earlier this year, the Obama administration tried through regulations to accommodate religious-affiliated nonprofits over contraception. It allowed groups like the Little Sisters to tell their insurance company or third-party administrator that they objected on religious grounds. The insurer or administrator would then have to provide contraceptives to the employees at no charge.
The premise was that an insurer or administrator would not have the same objection to providing such products. But the catch here is that the Little Sisters’ administrator — the Christian Brothers Employee Benefits Trust — is also run by a religious order.
The Christian Brothers, who joined the Little Sisters on the lawsuit, qualify as a church under employment law. And under that law, if they don’t want to provide contraception, the federal government has no recourse to force them to do so.
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