Justice Sotomayor Temporarily Blocks PPACA Birth Control Mandate

Developments overnight in a small but controversial issue raised by the PPACA.

Birth Control Mandate

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:

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.

FILED UNDER: Gender Issues, Health, Healthcare Policy, Law and the Courts, Religion, US Politics, , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. bill says:

    hopefully it wasn’t the champagne talking!

    happy new year everyone

  2. James Pearce says:

    In good conscience, they cannot do that. So the ‘accommodation’ still violates their religious beliefs.

    If that’s what the case hinges on, I expect that the best result for the Sisters would a strengthening of the accommodation rather than the elimination of the mandate.

    Also, sounds like they’re prepared to argue that the act of buying health insurance from a company that offers contraceptive plans to other patients –in other words, every insurance company– violates their religious beliefs. Clever, but I’m not sure that will fly.

    Maybe what these religious organizations need is their own government exchange. Or maybe they could form their own pro-life insurance company. (That’s still allowed, innit?) Surely some Christian billionaire would be wiling to put some money into that.

  3. rudderpedals says:

    Hard to see the requirement to fill out a form as a substantial burden on faith but they may have some really weird beliefs. I’m more familiar with the Sisters of the Perpetually Juicy.

  4. Ron Beasley says:

    @James Pearce: In my area the extensive Catholic hospital system does have it’s own insurance company and they offer birth control – in part to remain competitive and in part because the State of Oregon has required it for over a decade. Never a complaint until Obama Care. What does that tell you?

  5. JKB says:

    @Ron Beasley: What does that tell you?

    That there are a lot of cafeteria Catholics who pick and choose their dogma. And they were permitted to do that. The issue here is the forcing of Catholics who adhere more strictly to the teachings of the Church to also debase themselves under threat of government coercive violence.

  6. 11B40 says:


    What the heck is going on here ??? Didn’t President Obama say “directly” “If you like your contraception, you can keep your contraception. Period.”

    And why the heck is Justice Sotomayor even listening to a bunch of (non-burka) funny dressed women when Ms. Sandra Fluke ( and, gosh, don’t I love that last name ) has already delivered the truth from her high.

    Kudos, though, for the photo. That bit of Rosary beads just so warmed the cockles of this former altar boy’s heart.

    And my appropriate wishes for your Happiest of New Years

  7. Ron Beasley says:

    @JKB: The last numbers I saw showed that 98% of child bearing age Catholic women used birth control. So you are saying that 2% of the Catholics should be able to dictate to everyone else?

  8. Ron,

    Of course, the issues before the Court have nothing to do with whether or not people can be permitted to use birth control.

  9. Ron Beasley says:

    @Doug Mataconis: Doug, what I was saying is that Oregon has mandated that insurance companies cover birth control for over a decade. That included the very large Catholic insurance company. I never heard a word about it until now.

  10. bill says:

    @Ron Beasley:

    Catholics should be able to dictate to everyone else?

    the irony is staggering there Ron! last i checked the majority of Americans didn’t want obamacare from the get go, and the numbers are solidifying now that they see what it’s all about.

  11. rudderpedals says:

    @bill: No it’s not. The majority wanted Obamacare or something more than Obamacare. We had an election about Obamacare. We’ve been over this many times.

    When religious establishments are dictating the way we run the country there’s a problem.

  12. Ron Beasley says:

    @bill: 1. I said 2% of the Catholics.
    2. Most were opposed to Social Security and Medicare when they were introduced.

  13. PD Shaw says:

    @Ron Beasley: Social Security was introduced with broad exemptions for a lot of categories of employers, including religious and not-for-profit organizations like Catholic-run hospitals. It wasn’t until incomes rose after WWII and benefits of SS could be observed that momentum shifted to lifting exemptions. The New Dealers were either smarter about building consensus or lucked into it by not picking stupid fights.

  14. PD Shaw says:

    . . . and Ron, the reason the Catholic hospitals in Oregon are providing contraption is because the law in Oregon requires them to. They have to either comply or close. Oregon does not have a state Religious Freedoms law like the federal government and about 30 states.

  15. OzarkHillbilly says:

    Personally I do not see why religious organizations get tax exemptions as well as other… “special treatments” from the govt, when atheists do not. Seems to me the First Amendment says, “Congress shall make no law respecting an establishment of religion,” but there is a WHOLE LOT OF ESTABLISHIZIN’ goin’ on here.

    On the slightly more serious side, what am I missing? Religions get special treatment from the US gov’t (Congress is establishing a # of religions) despite a clause specifically prohibiting it. Or am I reading that too broadly? If so, is it then the contention that atheists can form a “religion” that we reject ‘prima facie’ but still get a tax shielded organization????

    Hmmmmm…. Or to put it another way, why do Catholics have more rights than I do?

  16. Gustopher says:

    Laws are important, unless your invisible friend objects.

    Ok, that’s a little harsh, but that’s basically the argument coming from congress with the Religious Freedom Restoration Act, and it has put the enforcement of laws in doubt. The Supreme Court cannot duck a broad ruling on this forever.

    I hope the stay is granted — congress has created a situation where reasonable people will disagree on the interpretation, and they shouldn’t be punished in the meantime while this gets thrashed out.

    I also hope the final decision is to restrict the power of the imaginary friends of legal entities that are not actually people or churches. Catholic Churches should be exempt, Catholic run hospitals should not, and Hobby Lobby should definitely not.

    Also, as an agnostic/apathetic-atheist, I cannot help but think that my rights are curtailed by not having an imaginary friend.

  17. OzarkHillbilly says:

    @PD Shaw: PD, don’t wash, don’t wear. All state constitutions have to comly with the federal constitution. We had a little brouhaha about that back in the 1860s or so.

  18. OzarkHillbilly says:


    I cannot help but think that my rights are curtailed by not having an imaginary friend.


    Or to put it another way, why do Catholics have more rights than I do?

    Wow. You are in deep doodoo my friend when you start having the same thoughts as I.

  19. An Interested Party says:

    The issue here is the forcing of Catholics who adhere more strictly to the teachings of the Church to also debase themselves under threat of government coercive violence.

    Indeed! Why should good Catholics have to pay taxes to support wars, the death penalty, and social policies that benefit the wealthy at the expense of those far less fortunate…that cafeteria is loaded with plenty of people and not just the usual stereotypes that conservatives like to think of…

  20. PD Shaw says:

    @OzarkHillbilly: Federal law requires Obama to accommodate religious beliefs when rulemaking. This doesn’t have anything to do with with state rights. Ron seems to be a bit confused since his state is an outlier and doesn’t have the same restrictions as the federal government has imposed on itself.

  21. Andre Kenji says:

    Opposition to the pill is a issue among Conservative Catholics, not among all Catholics. Anyway, that´s not something that should be done by employers.

  22. Davebo says:

    @PD Shaw:

    Oregon does not have a state Religious Freedoms law like the federal government and about 30 states.

    You might want to re-think that statement. Out of character for you PD.

  23. PD Shaw says:

    @Davebo: ? ? ?


  24. sam says:

    What PD means, I think, is that the Religious Freedom Restoration Act was ruled unconstitutional as applied to the states (but not the federal government). See, City of Boerne v. Flores (1997).

  25. rudderpedals says:

    Let’s look at the Sisters complaint a little closer. The Sisters aren’t being compelled to buy abortions or birth control pills for anyone. The unbearable burden on free exercise, such as it is alleged, is to complete a form the government uses to validate the exclusion for religious non-profits. The functional equivalent is the IRS quarterly 941 where exempt employers tick off the “in part or in whole exempt from FICA” box on the form.

    Unlike the other cases where there’s an allegation that the regulations were not the least restrictive possible, in this case it’s hard to imagine a less intrusive way to confirm eligibility than filling out a simple form and mailing it back.

    In most other contexts reasonable people might find this sort of objection close to or over the frivolity line.

  26. PD Shaw says:

    @sam I was getting at what happened after City of Boerne v. Flores, which was a number of states passed their own state Religious Freedom Restoration Acts. This was partly an ACLU initiative, and received its strongest opposition from states concerned that prisoners would make unreasonable demands under it.

    My more mundane point though was that Oregon is a bit of an outlier on these types of religious freedoms issues; its far less willing to pass laws to accommodate religious views. It was after all the state that tried to enforce peyote laws against Native Americans that set in motion the current legal environment.

  27. stonetools says:

    It looks like this will be resolved this years. Now with six Catholics on the bench, looks like tough sledding for the Administration. They do have the benefits of a stronger case, but this to be considered a toss up at this point.

  28. Matthew Berg says:

    @Ron Beasley:

    Not quite:

  29. rudderpedals says:
  30. Tyrell says:

    I have three topics to discuss. One is that the way I understood this is that the employees would not have to use this benefit. So I don’t understand what the problem is there.
    Second, I don’t know if there are requirements that a business has to provide a health insurance benefit. It seems that it would be better for employers to just pay their people more and let them handle their own insurance needs. They would probably come out better that way and there would not be all of this fussing. Many of my employers did not offer health plans.
    Next, there seem to be a lot of regulations and requirements with this plan that doctors are concerned about. Our local doctor talks about all the information gathering that they have to do now. Four pages of all kinds of personal questions. It all goes into some sort of national database and just who all has access to this stuff? He is the only doctor in town.
    Those are my concerns. I hope you enjoyed reading about them.

  31. wr says:

    @stonetools: “Now with six Catholics on the bench, looks like tough sledding for the Administration.”

    Not all Catholics on the Court privelege their own religious beliefs above what the Constitution says. Sure, Scalia and Alito, but Roberts is willing to rule in favor of big corporations ahead of the Church. We’ll have to see what the liberal Catholics do.