At the center of the debate: Prescription contraceptives. Tim Matsui/Getty Images
The Obama administration has asked the Supreme Court not to extend a temporary injunction given to a group of Colorado nuns who want to be exempt from some rules in the new health care law. The rules relate to the requirement that most employers provide health insurance that includes coverage of birth control costs.
“Applicants claim a right to extraordinary relief,” the Solicitor General’s office says in a court filing released just after 10 a.m. ET on Friday. But the nuns have no right to object, the filing says, in large part because even if they do what the law requires their employees still likely will not get “the items and services” that the nuns object to.
Basically, the Justice Department is making the case that all the nursing home the nuns operate has to do is:
“Self-certify that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, and then provide a copy of their self-certification to the third-party administrator of their self-insured group health plan. At that point, the employer-applicants will have satisfied all their obligations under the contraceptive coverage provision.”
What’s more, Justice argues that “this case involves a church plan that is exempt from regulation under the Employee Retirement Income Security Act of 1974. Employer-applicants’ third-party administrator therefore will be under no legal obligation to provide the coverage after applicants certify that they object to providing it.”
Those who support the nuns’ case, though, argue that just the act of signing such a self-certification could be tantamount to issuing a “permission slip” for the use of contraceptives by recognizing that such coverage exists, and therefore violates the Catholic orders’ rights.
And as The New York Times wrote earlier this week, the certifications could allow an insurer to provide contraception coverage despite the organization’s objection.
The Solicitor General’s filing offers this additional glimpse into why the nuns and other religious organizations object to the new law:
“If employer-applicants’ third-party administrator were nevertheless to decide to provide contraceptive coverage, applicants’ employees and their covered dependents would receive such coverage despite applicants’ assertion of their religious objections, not because of those objections.”
In other words: The employees might still get contraceptive benefits, even if a religious group registers its objections — a provision that doesn’t please those groups.
In reality, the nuns and many other Roman Catholic nonprofit groups turn to the Christian Brothers Employee Benefit Trust for their self-insured health plans. That trust’s plans do not provide contraception coverage. What’s more, the Christian Brothers has joined the nuns’ order in the legal challenge to the law.
Earlier Friday, NPR’s Scott Horsley previewed the announcement for our Newscast Desk:
“Justice Sonia Sotomayor granted a temporary injunction on New Year’s Eve to the group of nuns. … They had objected to a provision in the new health care law that requires most workplace health insurance policies to include birth control at no cost.
“The nuns’ complaint is one of dozens challenging the contraceptive requirement. But the government argues that the nuns are a special case, since their insurance provider is a self-funded church plan, and therefore already exempt from government regulation.
“Later this year, the Supreme Court will hear arguments in another case testing whether for-profit employers can be required to cover birth control for their employees.”
Scott was also on Morning Edition. In that report, Marcia Greenberger of the National Women’s Law Center argued that some charities are trying to impose their own religious views on employees who may not share them. Attorney Mark Rienzi, who works for the Becket Fund for Religious Liberty, made the case that “we have a big powerful federal government that has lots of ways to get contraceptives to people if it really thinks that’s urgently important.”