Little Sisters gear up for round two before the Supreme Court

The Little Sisters of the Poor Home for the Aged (Little Sisters), a group of Catholic nuns, is going before the Supreme Court yet again in its challenge of the contraception mandate found in the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148). This petition follows a lengthy Tenth Circuit decision upholding the district court’s denial of the preliminary injunction requested by Little Sisters after finding that the ACA and its regulations do not burden the free exercise of religion or violate First Amendment rights.

First challenge

The Little Sisters first challenged the government’s accommodation allowing religious organizations that were not exempt from the contraception mandate to file Employee Benefits Service Administration (EBSA) Form 700. This form notifies HHS of the organization’s religious objection, and submission to the insurer or third-party administrator puts the responsibility of providing the coverage on these parties. The Little Sisters were initially denied a request for preliminary injunction, but the Supreme Court granted relief pending appeal (see Supreme Court grants reprieve to nuns opposing contraceptive requirement, pending appeal, Health Reform WK-EDGE, January 29, 2014, and Little Sisters of the Poor file appeal in contraceptive challenge, Health Reform WK-EDGE, February 26, 2014).

The Little Sisters maintained that the government’s solution to the EBSA Form 700 was inadequate. The government created interim rules allowing an organization to simply write to HHS letting it know of a religious objection to contraception coverage, and HHS would do the rest to ensure that a third party provided the coverage. The Little Sisters stated that the rule further insists that they comply with the mandate and “facilitate the distribution of contraceptives in conjunction with their benefit plan, which is precisely what they have already said they cannot do.”

Mark Rienzi, lead attorney for the case, said that the Little Sisters consider involvement in the distribution of contraception to be immoral, and wish for an exemption. Instead, “the government insists that it can take over their ministry’s employee healthcare to distribute these drugs to their employees, while dismissing the Sisters’ moral objections as irrelevant.” The Beckett Fund for Religious Liberty theorizes that the court is likely to consider all of the petitions this fall, and, if granted the case would be decided prior to the end of the June 2016 term.