The ‘luxury of time’
Kevin Walsh, University of Richmond law professor and co-counsel for the Little Sisters, said that once the government has responded to the injunction, Justice Sotomayor can decide whether to continue to block enforcement of the contraception mandate, pending a decision on the merits.
“Until the injunction, there was no luxury of time,” Mr. Walsh said. “What this temporary injunction provides is some time for the Supreme Court to give it thorough consideration and also hear from the government.”
The nuns and other religious organizations have the option of filing paperwork indicating it will not be covering contraceptives because of the tenets of their faith, but as Ilya Shapiro, senior fellow in constitutional studies at the Cato Institute, explained, “they don’t want to be complicit in any way.”
“The Obama administration issued a rule that was a so-called accommodation for the views and interests of religious organizations,” he said. “They don’t have to pay for the product or procedures they object to, but their [insurance companies] will. They have to certify they’re not covering it and authorize insurers to do so.”
Judy Waxman, vice president for health and reproductive rights at the National Women’s Law Center, said her organization was “not happy” with the order, but shared the view that many more steps would be taken before a final decision is rendered on the mandate.
“The question at hand is: Is signing a piece of paper a burden on an institution’s religious affiliation?” Ms. Waxman said. “I cannot imagine how it could be.”
Ms. Waxman said that as the case progressed, the law center would take advantage of any opportunities for outside parties to weigh in.
Wednesday marked the start of the individual mandate requiring all Americans to have health insurance. Included in the program is an administrative rule requiring large employers to insure birth control as part of their health care plans, including morning-after pills that some religious groups equate to abortion.
The nuns are not the first to fight the mandate, though their injunction was filed just before the deadline. Numbers provided by the Becket Fund show that 91 cases have been filed against the contraceptive requirement, split roughly between profit and nonprofit organizations.
Lower courts have been divided on the constitutionality of the contraception mandate, and the U.S. Supreme Court is set to hear arguments from for-profit organizations this year.
“It’s important to see that almost every religious nonprofit that’s asked for a preliminary injunction has gotten one,” the Becket Fund’s Mr. Rienzi said. “The momentum is big and strong and something to be positive about.”