10th Cir.: Little Sisters granted relief from the heat

Refusing to give up in its battle for religious freedom, the Little Sisters of the Poor Home for the Aged, Denver, Colorado (Little Sisters) can breathe a temporary sigh of relief; it will not at this time need to comply with the contraceptive coverage provision of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148). The Tenth Circuit’s order granted the Little Sisters a reprieve until the Supreme Court rules on its case (The Little Sisters of the Poor for the Aged, Denver, Colorado v. Burwell, August, 21, 2015, per curiam).

The Little Sisters of the Poor recently filed their petition with the Supreme Court, following their dissatisfaction with a decision by the Tenth Circuit (see Prayers for injunction go unanswered in appellate review of contraceptive accommodation, Health Reform WK-EDGE, July 15, 2015). In that decision, the Tenth Circuit upheld the district court’s denial of the preliminary injunction, which the Little Sisters requested after the court’s finding that the ACA and its regulations do not burden the free exercise of religion or violate First Amendment rights.


The Little Sisters initially 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 and shifts it away from the employer. 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).

Supreme Court appeal

While the Tenth Circuit provided the Little Sisters with a reprieve, religious organizations and various states are wasting no time voicing their opinions. To date, 20 states, a group of Orthodox Jewish Rabbis, six orders of nuns, the flagship seminary of the Southern Baptist Convention, and various other religious and secular organizations are filing friend-of-the-court briefs at the Supreme Court, expressing support for the Little Sisters in the contraceptive coverage mandate challenge.

“This strong show of support for the Little Sisters demonstrates just how important it is that the Supreme Court address the impact of the HHS mandate, particularly on religious groups,” said Mark Rienzi, Senior Counsel at the Becket Fund for Religious Liberty, who is leading the challenge. “It is especially significant that 20 state governments are supporting the Little Sisters at the Supreme Court.”

The case is No. 14-6028.