Opinion

DOJ asks Supreme Court not to block HHS mandate for Little Sisters of the Poor

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Beltway Confidential,Opinion,Joel Gehrke,Supreme Court,Justice Department,Contraception,HHS

President Obama's attorneys at the Justice Department asked the Supreme Court not to grant the Little Sisters of the Poor an injunction blocking Obamacare's contraception mandate, in response to Justice Sonia Sotomayor's decision to grant temporary relief.

DOJ noted that the nuns could avoid the whole question by simply dropping their group health coverage and paying the Obamacare taxes.

"The preventive-services coverage provision in general, and the contraceptive coverage provision in particular, appy only if an employer offers a group health plan," Solicitor General Donald Verrilli wrote in response to the temporary injunction. "Employers, however, are not required to offer group health plans in the first place ... [large employers have] a 'choice' between two legal options: provide a group health plan or risk payment of the tax."

Verrilli argued that Little Sisters should not receive the injunction because the nuns qualify for the "accommodation" made by the Obama team: If they file a "self-certification" form stating that they cannot provide the contraceptive coverage for religious reasons, they don't have to do so — the responsibility then falls to their insurance provider.

"If an eligible organization with a self-insured group health plan decides not to provide contraceptive coverage, its third-party administrator ordinarily must provide or arrange separate payments for contraceptive services if it 'agrees to enter into or remain in a contractual relationship with the eligible organization or its plan,' " Verrilli wrote.

Because the insurance provider must facilitate contraception coverage in order to remain in a relationship with the religious objectors, such a self-certification amounts to "a permission slip for abortion drugs and contraceptives," the Becket Fund's senior counsel Mark Rienzi, who represents the nuns, said in a response to Verrilli's argument.

Verrilli addressed that argument in his memorandum, however, by observing that even the Little Sisters' insurance provider qualifies for a religious exemption from the contraception mandate.

"Therefore, applicants lack any basis for concluding that plan participants and beneficiaries will receive contraception coverage if the employer applicants compete the self-certification form," Verrilli wrote.

“The government now asks the Supreme Court to believe that the very thing it is forcing the nuns to do — signing the permission slip — is a meaningless act," Rienzi said. "But why on earth would the government be fighting the Little Sisters all the way to the Supreme Court if it did not think its own form had any effect? The government’s brief offers no explanation for its surprising insistence on making the Little Sisters sign a form the government now says is meaningless."

The Little Sisters fear that by signing the self-certification form, they will make it easier for the federal government to pressure their third-party administrator through a new law or regulation.

Verrilli conceded that such a scenario is hypothetically possible, but argued that "if relevant new regulations were issued, [the Little Sisters] could renew their request for injunctive relief in light of the changed circumstances."

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