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Nuns take contraceptive mandate to High Court

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(Bloomberg) — Part of the Patient Protection and Affordable Care Act (PPACA) is on hold in a Colorado case until at least tomorrow, as the U.S. Supreme Court considers contentions from religious groups that say they don’t want to facilitate coverage for contraception.

Acting just before the effective date of U.S. Department of Health and Human Services (HHS) PPACA regulations aimed at ensuring free access to birth control, Justice Sonia Sotomayor on Dec. 31 temporarily blocked the administration from requiring an order of Catholic nuns to comply with the regulations. She gave government lawyers until tomorrow to respond to arguments pressed by the Little Sisters of the Poor, a group that cares for needy elderly people.

Sotomayor — or, if she refers the matter to all nine justices, the full court — now must decide whether to grant a longer delay while the legal dispute plays out. The court could also say it will hear arguments in the case. Sotomayor’s two- sentence order, which by its terms applies only to the litigants in the Little Sisters case, followed similar action at the appeals court level in other cases.

Although the HHS PPACA regulations don’t require the order to provide contraceptive coverage, it can avoid the rule only by submitting a “self-certification” attesting to its objections. The self-certification form is designed to shift the responsibility for providing contraceptive coverage to the objecting group’s insurer, which could then seek government reimbursement.

The Little Sisters order says the provision violates the Constitution and a federal religious-freedom law by forcing the order to become complicit in providing contraceptives.

The regulations “will expose the Little Sisters of the Poor to draconian fines unless they abandon their religious convictions and participate in the government’s system to distribute and subsidize contraception,” lawyers for the order argued.

Shifting Responsibility
The administration says its regulations don’t impose a significant burden on the nuns’ religious beliefs.

The rules make an exception for self-funded church health plans, saying their insurance administrators don’t have to provide the coverage at all. The Little Sisters’ health plan is run by another religious organization, the Christian Brothers Employee Benefit Trust, which provides services for almost 500 religious groups. The trust is also a party in the lawsuit.

The Justice Department argued in November in a filing at the trial court level that final rules “accommodate concerns expressed by non-profit religious organizations by relieving them of any responsibility to contract, arrange, pay, or refer for contraceptive coverage or services.”

Divided Courts
Lower courts are divided on the issue. In the Little Sisters case, a federal trial judge in Colorado said the group’s rights weren’t violated.

The Supreme Court is already planning to consider religious objections to the contraceptive mandate in a different context. The justices will hear arguments in late March or early April from family-run businesses, including the craft-store chain Hobby Lobby Stores Inc., that say they shouldn’t have to provide some types of birth-control coverage to their employees.

The business cases don’t address the HHS rules that are at issue in the Little Sisters of the Poor dispute.

Instead, the justices will decide whether PPACA itself violates the rights of the companies or their owners. A central question is whether a 1993 religious-freedom law gives for-profit companies the same rights as people.

The new Supreme Court case is Little Sister of the Poor v. Sebelius, 13A691.

With assistance from Margaret Talev in Washington. Editors: Fred Strasser, David E. Rovella.

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