The memorandum filed Friday (Jan. 3) with Associate Justice Sonia Sotomayor came in response to her Dec. 31 order granting a temporary injunction to the Little Sisters of the Poor in Denver and other Catholic organizations. Upon issuing the injunction, Sotomayor gave the Department of Justice (DOJ) until Jan. 3 to respond. DOJ also encouraged the Supreme Court not to grant review in the case.
The high level legal dispute results from a rule requiring employers to provide their workers with coverage for contraceptives, including ones that can cause early abortions, or face potentially massive penalties. The Department of Health and Human Services (HHS) included the mandate among the regulations implementing the Affordable Care Act, the 2010 health care law.
In the administration's reply, Solicitor General Donald Verrilli said the nuns do not need an injunction because they are eligible for an accommodation under the controversial mandate that exempts them from providing for contraceptive coverage.
"They need only 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," Verrilli told Sotomayor.
Many of those who oppose the abortion/contraception mandate, however, have long contended the accommodation does not resolve their religious objections. Employers who object will be unwilling participants in underwriting contraceptive and abortion-causing drugs, they say. Under the accommodation, employers will have to be affiliated with an insurance plan connected to coverage of such pills and might absorb increased costs from insurers for the drugs.
A lawyer for the nuns said the Obama administration "has started the new year the same way that it ended the old one: trying to bully nuns into violating their religious beliefs."
"The government demands that the Little Sisters of the Poor sign a permission slip for abortion drugs and contraceptives, or pay ... millions in fines," said Mark Rienzi, senior counsel of the Becket Fund for Religious Liberty, in a statement after DOJ filed its response. "The Sisters believe that doing that violates their faith, and that they shouldn't be forced to divert funds from the poor elderly and dying people they've devoted their lives to serve.
"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," he 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 abortion/contraception mandate requires coverage of such drugs as Plan B and other "morning-after" pills that possess a post-fertilization mechanism that can cause an abortion by preventing implantation of tiny embryos. The rule also covers "ella," which -- in a fashion similar to the abortion drug RU 486 -- can act even after implantation to end the life of the child.
Churches and closely affiliated auxiliaries are exempt from the mandate, but many Christian ministries and institutions are not.
Her order brought to 19 the number of injunctions granted to non-profit groups that have challenged the mandate in court, according to the Becket Fund for Religious Liberty. An injunction has been denied in only one suit brought by a non-profit.
Sotomayor's order followed by only four days a victory in a Houston federal court for two Baptist universities. East Texas Baptist University and Houston Baptist University won a Dec. 27 injunction against the mandate. A week earlier, GuideStone Financial Resources of the Southern Baptist Convention won an injunction against the regulation.
Two HHS mandate cases involving for-profit plaintiffs -- Hobby Lobby and Conestoga Wood Specialties -- are set to be argued before the Supreme Court this term, possibly in March.
For-profit and non-profit corporations have filed a total of 91 lawsuits against the mandate, according to the Becket Fund.
The Southern Baptist Ethics & Religious Liberty Commission has signed onto friend-of-the-court briefs on behalf of Hobby Lobby, Conestoga Wood and others challenging the mandate.
Tom Strode is Baptist Press' Washington bureau chief. Erin Roach, Baptist Press assistant editor, contributed to this story. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress) and in your email (baptistpress.com/SubscribeBP.asp).
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