- The Washington Times - Wednesday, January 1, 2014

Advocates for a Denver-based congregation of Catholic nuns on Wednesday applauded an eleventh-hour order by Supreme Court Justice Sonia Sotomayor to temporarily block a requirement under the Affordable Care Act to insure birth control procedures, but attorneys and analysts agreed the fight is far from over.

The complicated politics of Obamacare were on full display on the first day of the year as a key component of President Obama’s health care law was put on indefinite hold at the last moment by a Catholic court justice whom Mr. Obama himself named to the high court.

The justice’s ruling was also the latest setback in a string of implementation problems that the Obama administration has encountered since the rollout of its health care exchanges in October.

In a temporary injunction issued by Justice Sotomayor just hours before she helped usher in the new year in New York City’s Times Square, the U.S. Department of Health and Human Services was blocked “from enforcing against [the Little Sisters of the Poor] the contraceptive coverage requirements imposed by the Patient Protection and Affordable Care Act.”

The administration has until Friday to respond.

Conscientious objectors

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The contraception issue has bedeviled Mr. Obama almost from the passage of the Affordable Care Act in 2010, leading to an open break with U.S. Catholic bishops and a series of efforts by the administration to accommodate faith-based leaders while keeping coverage of birth control in Obamacare.

The White House, in a statement released Wednesday, argued that the Justice Department has made clear that the mandate doesn’t apply to religious groups like the nuns and that the changes it has made to the original regulation have met the appeals of institutions tied to religious organizations that oppose artificial contraception.

“[We] remain confident that our final rules strike the balance of providing women with free contraceptive coverage while preventing non-profit religious employers with religious objections to contraceptive coverage from having to contract, arrange, pay, or refer for such coverage,” the White House statement said.

The contraception mandate, part of a package of rules that took effect Wednesday, would have required the nonprofit, which has been helping the elderly poor for 175 years, to provide its employees with a health care plan that included birth control or else face fines.

Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty, which represents the Little Sisters, said the injunction spared the group “from being forced to violate their religion.”

“The U.S. government is big, powerful and expansive,” Mr. Rienzi said. “It’s got lots of ways to give out contraceptives. There’s no reason for the government to make nuns be a part of this.”

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Sen. Roy Blunt, Missouri Republican, also applauded Justice Sotomayor’s decision, calling the contraception mandate “an egregious and blatant violation” of religious freedoms guaranteed under the First Amendment.

“No American should be forced to surrender their religious freedom or abandon their deeply held religious beliefs,” he said in a statement.

Attorneys submitted their case to Justice Sotomayor after their request was denied Tuesday by the 10th U.S. Circuit Court of Appeals in Denver. Justice Sotomayor handles cases from the 10th Circuit.

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.”

Divided nation

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.”

• Meredith Somers can be reached at msomers@washingtontimes.com.

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