Little Sisters of the Poor vs. the contraception mandate

Justice Sotomayor's accommodation for the Catholic group isn't the victory for religious freedom the right insists

Published January 12, 2014 7:00PM (EST)

                                         (<a href=''>Calek</a> via <a href=''>Shutterstock</a>)
(Calek via Shutterstock)

This article originally appeared on Religion Dispatches.

Religion DispatchesJustice Sonia Sotomayor's New Year's Eve granting of the request by Little Sisters of the Poor and other Catholic organizations to enjoin (temporarily) the Obama administration from enforcing the birth control coverage requirement made for overblown headlines like "Supreme Court Halts Birth Control Mandate for Catholic Group" and "Birth-control rule a hitch as health law takes effect."

In reality, Justice Sotomayor only stayed the court of appeals' denial of Little Sisters' request for an injunction; in other words, her ruling only temporarily stops the government from enforcing the regulation against Little Sisters and its co-plaintiffs. How the case will ultimately turn out is far from clear.

But as Georgetown Law School's Marty Lederman points out in a new post at Balkanization, the hitch is not in the law, but in Little Sisters' case itself.

Little Sisters of the Poor, an order of nuns that operates nursing homes for the poor, is, like other religious non-profits, subject to the accommodation that the administration crafted last year in response to objections that religious non-profits, like houses of worship, should be fully exempt from the rule. The accommodation requires them to self-certify as objecting religious organizations, thus placing the onus on their insurance plan's third-party administrator to offer the coverage separately to employees. Objecting non-profits claim this arrangement still makes them complicit in providing the coverage they consider sinful, in that the self-certification would "authorize" and "direct" the coverage through the third-party administrator.

But Lederman, who last month pointed out a potential pitfall in the cases of the for-profit companies that will be heard by the Court later this term, is out with a new post suggesting a big hole in the Little Sisters' case as well. In short, the Little Sisters' argument that their self-certification would "authorize" and "direct" the third-party administrator to provide the coverage, thereby making them complicit, falls flat, since it is the government, not the plaintiffs, who is authorizing and directing the third-party administrator to take the action. (As Lederman notes, this argument also applies to the University of Notre Dame, which has raised similar objections in a case pending in the United States Court of Appeals for the Seventh Circuit.)

But the particularities of Little Sisters' insurance arrangement, Lederman argues, make its case even less compelling than Notre Dame's, because its insurer is not even required to provide the coverage at all, even if Little Sisters were to set the process in motion by self-certification. Little Sisters' coverage comes through a "church plan," issued by Christian Brothers Trust. Under federal law, even if their insured organizations fill out the forms that would otherwise require the third-party administrator to arrange for the coverage, "church plans" are not required to provide it.

Lederman concludes:

Which means that if Little Sisters signs the self-certification that it opposes providing coverage for contraception, its employees will not receive such coverage.  In this respect, any possible connection between the Little Sisters' religious objection and their employees' use of contraception would be even more attenuated than Notre Dame's.  Indeed, it's not at all obvious why the plaintiff has standing to object to the self-certification requirement:  How could the Little Sisters be complicit in their employees' use of contraceptives if those employees will not receive reimbursement for those services?

As the district court in Denver found in denying Little Sisters' request for a preliminary injunction, the plaintiffs in the case "ignore the fact that, as participants in a church plan, they fall outside the [government's] current enforcement authority." The district court, in its ruling four days before the regulations went into effect, noted that "[p]laintiffs would have the court surmise that their self-certification form could be relied on by a hypothetical third-party administrator to facilitate the provision of contraception, sterilization, and abortifacients to their employees at some point in the future." But the relief the Little Sisters are seeking (a preliminary injunction) depends on a showing of (among other things) "imminent harm," which both the district court and court of appeals declined to find.

If the lower courts are right, Little Sisters are seeking legal relief from nonexistent problem. Are religious groups discriminated against by the contraception coverage benefit? Sounds like the opposite: that the exemption is broader than many originally thought.

UPDATE: Obviously Little Sisters' employees won't have the benefit of the contraception coverage. But to the extent conservatives are portraying the Supreme Court order as a big victory for religious freedom, their celebratory mood seems a big misplaced. Sotomayor's order temporarily relieves them of possibly having to fill out forms that have no effect: even if (and that is not clear) they feel compelled to complete the self-certification forms under threat of fines by the government, the forms have no impact, and no infringement on their religious freedom. As Grant Gallicho notes:

@sarahposner @bobsmietana A cynic might wonder whether their lawyers wish the religious burden was greater or clearer than it really is.

— Grant Gallicho (@gallicho) January 2, 2014

A few more thoughts on the issue here.

By Sarah Posner

Sarah Posner is the senior editor of Religion Dispatches, where she writes about politics. She is also the author of God's Profits: Faith, Fraud, and the Republican Crusade for Values Voters" (PoliPoint Press, 2008).

MORE FROM Sarah Posner