The U.S. government asked the Supreme Court on Friday not to allow Roman Catholic-affiliated groups a temporary exemption from a part of the Obamacare health care law that requires employers to provide insurance policies covering contraception.
On Tuesday night, Justice Sonia Sotomayor had granted Little Sisters of the Poor, a Baltimore-based order of nuns that runs nursing homes across the country, and Christian Brothers Services, a group that administers health care plans for Catholic organizations, a temporary injunction preventing enforcement of the so-called “contraception mandate” against them while litigation continues.
Now that the court has received the government’s filing, Sotomayor—or the nine justices if she chooses to refer it to the whole court—will decide whether the injunction should be extended while the case continues in lower courts. There is no deadline by which the court has to act.
The case coincides with the expansion this year of coverage under the 2010 Obamacare law, the most sweeping U.S. social legislation in 50 years. Over time, the law aims to dramatically reduce the number of Americans who lack health insurance, which the U.S. government has estimated at more than 45 million.
The highly partisan issue of health care promises to play a prominent role in November’s Congressional elections, especially amid glitches that have included problems with the website used to enroll people in coverage.
‘No Legal Basis’
In its filing, the government says the groups have no legal basis to file the challenge because of the type of health insurance plan in question. It is a so-called “church plan,” which the government cannot require to provide contraception coverage under existing law.
That’s because church plans are exempt from the Employee Retirement Income Security Act, the federal law under which the authority of the government to enforce the contraception mandate rests, the government has admitted.
The religious organizations accuse the federal government of forcing them to support contraception and sterilization in violation of their religious beliefs or face steep fines.
The 2010 Affordable Care Act, known as Obamacare, requires employers to provide health insurance policies that cover preventive services for women, including contraception and sterilization.
The act makes an exception for religious institutions such as houses of worship that mainly serve and employ members of their own faith, but not schools, hospitals and charitable organizations that employ people of all faiths.
As a compromise, the administration agreed to an accommodation for nonprofits affiliated with religious entities that was finalized in July.
Under the accommodation, eligible nonprofits have to provide a “self certification”—described by one lower court judge as a “permission slip”—that authorizes the insurance companies to provide the coverage. The challengers say that step alone is enough to violate their religious rights, regardless of whether employees ultimately receive contraception coverage.
A federal judge in Colorado, William Martinez, denied the plaintiffs’ request for an injunction on Dec. 27. The Denver-based 10th U.S. Circuit Court of Appeals followed suit on Tuesday, prompting the last-minute plea to the Supreme Court.
Throughout the country, Catholic groups are asking the courts to exempt them temporarily from the mandate while litigation continues. Most courts have granted the requests. The mandate, which was due to take effect for the organizations on Wednesday, is already in place for many women who have private health insurance.
In separate cases, the Supreme Court already has agreed to hear oral arguments on whether for-profit corporations have the basis to object to the contraception mandate on religious grounds. The court is due to hear the arguments in March and decide the two consolidated cases by the end of June.
Reporting by Lawrence Hurley and Chizu Nomiyama
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