As the hours ticked down to the end of 2013, Justice Sonia Sotomayor issued a temporary injunction against enforcement of the Affordable Care Act’s birth control coverage mandate, the first ruling of any kind that a Supreme Court Justice has made regarding an issue that has been winding its way through the Federal Courts for two years now:
WASHINGTON — Justice Sonia Sotomayor on Tuesday temporarily blocked the Obama administration from forcing some religious-affiliated groups to provide health insurance coverage of birth control or face penalties as part of the Affordable Care Act.
Acting at the request of an order of nuns in Colorado, Justice Sotomayor issued the stay just hours before the requirement was to go into effect on New Year’s Day. She gave the Obama administration until Friday to respond to the Supreme Court.
Justice Sotomayor’s order applies to the nuns, the Little Sisters of the Poor, and other Roman Catholic nonprofit groups that use the same health plan, known as the Christian Brothers Employee Benefit Trust. The groups’ lawsuit is one of many challenging the federal requirement for contraceptive coverage, but a decision on the merits of that case by the full Supreme Court could have broader implications.
“We are delighted with the ruling,” said Mark L. Rienzi, a lawyer at the Becket Fund for Religious Liberty, who represented the nuns in the lawsuit. “We are delighted that the Supreme Court will require the government to file briefs in the court on this matter.” The Little Sisters of the Poor operate nursing homes for low-income people in the United States and around the world.
Without Justice Sotomayor’s order, the nuns “would have been forced to comply with the contraceptive mandate on Wednesday or face large fines,” Mr. Rienzi said late Tuesday.
The contraception requirement has been one of the most controversial aspects of the health law since the Obama administration first announced it in mid-2011, along with other requirements it characterized as preventive care. Religious opponents of abortion have objected especially strongly to the requirement to provide emergency contraception pills, like Plan B, although most studies show that the drug works by preventing fertilization, not by inducing abortion.
In an effort to compromise, the administration said that women who work for nonprofit religious groups that object to birth control could receive separate coverage not paid for by the employers. It refused, however, to offer accommodations to secular businesses whose owners have religious objections to contraception.
That has led to a separate group of lawsuits. And last month, the Supreme Court agreed to hear a pair of cases on whether corporations may refuse to provide insurance coverage for contraception.
Justice Sotomayor — who later was to lead the countdown for the Times Square ball drop — issued her order after the United States Court of Appeals for the 10th Circuit, in Denver, earlier on New Year’s Eve denied the nuns’ request for a preliminary injunction to block enforcement of the contraceptive coverage requirements imposed by the new health care law.
The Obama administration had argued that the Little Sisters of the Poor could opt out of the contraceptive coverage requirement by completing “a self-certification form” and providing it to the entity that administers their health benefits. Therefore, the Justice Department said, the contraceptive mandate imposes “no substantial burden on their exercise of religion.”
“To opt out of providing contraceptive coverage, Little Sisters need only certify that they are nonprofit organizations that hold themselves out as religious and that, because of religious objections, they are opposed to providing coverage for some or all contraceptive services,” the Justice Department told the appeals court on Monday.
The administration says it has exempted churches from the contraceptive coverage requirement and offered an accommodation to certain religious nonprofit groups. But the Becket Fund argued that “the ‘accommodation’ still forces the Little Sisters to find an insurer who will cover sterilization, contraceptive and abortion-inducing drugs and devices.”
“The Sisters would also be required to sign a form that triggers the start of that coverage,” it said. “In good conscience, they cannot do that. So the ‘accommodation’ still violates their religious beliefs.”
As noted, Justice Sotomayor has given the Federal Government until Friday to respond to the application for a stay. Indeed, the Federal Government’s briefs are due by 10:00am Friday morning, so it’s entirely possible that we’ll see some kind of final ruling on the stay application by the end of the day on Friday. Sotomayor may then end up granting the stay, denying it, or referring the entire matter to the full Court for consideration. If she denies the stay, then the Appellants would have the right under the rules of the Supreme Court to submit the application to a different Justice, who then would most likely submit, or resubmit, the matter to the full Court.
I’m not sure that you can draw any conclusions about either how the stay might ultimately be handled by Justice Sotomayor, or the full Court, from this action. In some respects, granting the stay in this particular case is likely the most ideal solution until the Court can hear opposing arguments on a more permanent stay via the Federal Government’s briefs. Nor would I draw any particular conclusions about the fact that it was Justice Sotomayor who issued the temporary stay. I suspect that the main reason she granted the stay was simply for the purposes of maintaining the status quo until she, or the full Court, can rule on the matter. That said, if the Supreme Court does ultimately grant a stay pending appeal in this case, then it could be an indication that there is a sufficient majority on the Supreme Court skeptical of the mandate under both the First Amendment and the Religious Freedom Restoration Act to potentially strike down the mandate at some point in the future. In the end, though, that too would still be pure guess work.
The ruling from Justice Sotomayor was not the only action coming from Federal Courts on the birth control mandate issue yesterday, there was also action in three separate Circuit Courts of Appeal:
- The 7th Circuit denied Notre Dame University’s emergency motion for an injunction pending appeal, but ordered expedited briefing and oral argument. (Full text of order.) (See prior related posting.)
- The 10th Circuit denied Little Sisters of the Poor’s emergency motion for an injunction pending appeal. (Full text of order.) (See prior related posting.) However late in the evening, Justice Sotomayor issued a temporary injunction blocking enforcement, and ordered a response by the federal government by 10:00 AM on Friday. (Full text of order from SCOTUSblog.)
- The D.C. Circuit, by a 2-1 vote, granted emergency motions for injunctions pending appeal filed by by Priests for Life (see prior posting) and by the various plaintiffs (other than Thomas Aquinas College that prevailed below) in the Roman Catholic Archbishop of Washington case. (Full text of motion.) Judge Tatel filed a dissenting opinion. The court also ordered the two cases consolidated for appeal. (Full text of Order and Opinion). Appellants in both cases reacted in press releases. (Statement of Archdiocese; Statement of Priests for Life.)
On top of all of this, of course, we have the case that the Supreme Court has accepted for appeal, which will be argued sometime in the Spring most likely, with a decision coming by the end of the term in June. Absent the Justices dodging the issue by ruling on some side issue like standing, we will likely have a resolution of this entire question by then.
