WASHINGTON —The U.S. Department of Justice registered its opposition to a temporary injunction for the Little Sisters of the Poor, after Justice Sonia Sotomayor directed the administration to respond by Jan. 3, 10am Eastern.
The Little Sisters of the Poor, a religious order of nuns who care for the elderly and the poor, had petitioned the high court for an 11th-hour reprieve, and, on Dec. 31, Justice Sotomayor granted a temporary stay, while requesting the administration to respond to the petition within three days.
“The solicitor general, on behalf of respondents, respectfully files this memorandum in opposition to the emergency application for an injunction pending appellate review or, in the alternative, a petition for a writ of certiorari before judgment and injunction pending resolution,” stated the Justice Department in papers filed with the high court at the Jan. 3 deadline.
The administration’s stance underscored its commitment to upholding one of the most contentious elements of the Affordable Care Act, even when the plaintiff challenging the law was a religious order dedicated to sesrving the needy.
The brief, filed by Solicitor General Donald Verrilli Jr., echoed many of the administration’s past objections to an exemption for religious nonprofits and restated the importance of providing contraception and other services free of charge to female employees. It further argued that the Religious Freedom Restoration Act did not apply to the Little Sisters’ specific concerns, and it noted that not one court of appeals had ruled on the merits of cases filed by religious nonprofits.
The White House has provided an “accommodation” for religious nonprofits that object to the mandate on moral grounds but are not exempt from compliance with the federal law. Under the accommodation, the government requires objecting religious employers to sign a self-certification form that allows the mandate’s provisions to be implemented by a third-party administrator. The Little Sisters contend that signing the form makes them complicit in the provision of services that violate their deeply held moral and religious beliefs.

‘Permission Slip’ for Abortion Drugs and Contraceptives
“The government demands that the Little Sisters of the Poor sign a permission slip for abortion drugs and contraceptives or pay millions in fines. The sisters believe that doing that violates their faith and that they shouldn’t be forced to divert funds from the elderly poor they serve to the IRS,” said Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty and lead counsel for the Little Sisters, in a statement released after the Justice Department filed its brief opposing a temporary injunction.
The Obama administration has defended its “accommodation” as a reasonable solution for religious nonprofits that oppose the mandate on moral grounds, arguing that nothing more is required than for the Little Sisters and other plaintiffs to sign a self-certification form.
But Rienzi said that the government’s insistence that plaintiffs sign the form suggested that the action was important.
“The government now asks the Supreme Court to believe that the very thing it is forcing the nuns to do — signing the permission slips — is a meaningless act. But why on earth would the government be fighting the Little Sisters all the way to the Supreme Court if it did not think its own form had any effect?” Rienzi said.
“If the administration believed its contraceptive mandate was valid, it would join the Little Sisters’ request for Supreme Court review because the government has lost almost all of the cases in the lower courts. Instead, its brief today is devoted to trying to keep the court out of the issue, which would leave hundreds of religious organizations subject to massive fines for following their religion.”
For-profit and nonprofit employers have filed a total of 91 legal challenges against the HHS mandate. The U.S. bishops have pressed for a broad exemption that would shield all employers who object to the mandate on moral grounds.
The Becket Fund is representing a number of for-profit and nonprofit plaintiffs that have filed legal challenges to the mandate, including the Eternal Word Television Network. The Register is a service of EWTN.
The Becket Fund also represents Hobby Lobby, a large craft-store chain, and the Supreme Court has agreed to hear oral argument for this case in March, with a decision expected by late June.

Government’s Arguments
In the brief filed with the high court today, the Justice Department was intent on explaining why the legal issues in the Hobby Lobby case were different from the lawsuit filed by the Little Sisters, with the apparent goal of discouraging the justices from taking up this case or granting a temporary injunction for all religious nonprofits that will face massive financial penalties if they do not comply with the mandate.
“Applicants are not … situated like the for-profit corporations that brought suit in Hobby Lobby Stores, Inc. v. Sebelius. … The employer-applicants here are eligible for religious accommodations set out in the regulations that exempt them from any requirement ‘to contract, arrange, pay or refer for contraceptive coverage,’” stated the brief.
The Justice Department’s brief further noted that the religious order was covered under a “church plan,” which meant that it was “exempt from regulation under the Employee Retirement Income Security Act of 1974 (ERISA).”
While ERISA is responsible for enforcement of the mandate, church plans are specifically excluded from its enforcement authority.
Since the church plans would not be subject to enforcement, the government argued, the religious freedom of organizations holding such plans was not under threat.
The administration offered the same argument in papers filed in a Brooklyn court, where the Archdiocese of New York and four New York-area Catholic nonprofits sought relief from the mandate.
In that case, Judge Brian Cogan provided two Catholic schools and two healthcare services with a permanent injunction. He said the legal challenge had merit, despite the fact that the church plans were actually shielded from ERISA’s enforcement authority.
According to Cogan, “Plaintiffs allege that their religion forbids them from completing this self-certification, because, to them, authorizing others to provide services that plaintiffs themselves cannot is tantamount to an endorsement or facilitation of such services. Therefore, regardless of the effect on plaintiffs’ TPAs [third-party administrator], the regulations still require plaintiffs to take actions they believe are contrary to their religion.”

Other Concerns
In its brief filed with the high court today, however, the Justice Department acknowledged the plaintiffs’ fears that the self-certification form could be used in the future to authorize enforcement of the mandate. Such enforcement could be put in effect, stated the Justice Department, “if Congress were to amend the Affordable Care Act … to grant the government ‘some authority outside of ERISA to enforce’ the contraceptive-coverage provision or if the departments ‘promulgate new regulations that apply to church for the courts.’”
While dismissing the plaintiffs’ concerns as irrelevant in the short term, the government’s brief noted, “if relevant new regulations were issued, applicants could renew their request for injunctive relief in light of the changed circumstances.”
During a Jan. 3 conference call with the press, Eric Rassbach, deputy general counsel with the Becket Fund, also noted another reason for the Little Sisters’ concern about signing the self-certification form. The Little Sisters had also contracted with another third-party administrator, Express Script, Inc. (ESI), a prescription drug provider, which is not a “church plan.”
During a Jan. 3 interview with the Register, Daniel Blomberg, a lawyer with the Becket Fund, told the Register: “ESI provides pharmaceutical drugs, such as Plan B and ella, and they have made no such guarantees [that they will not provide it to patients covered under their plans] and have no religious objection to providing it.”
The self-certification form “authorizes whomever receives it that they have permission to provide the drugs, and it is the means of reimbursement for ESI. Until Express Script receives that form, they will not get paid for the cost of the drugs,” added Bloomberg, who noted that the government accomodation provides incentives for third-party administrators to offer such provisions when religious employers refuse to do it directly.
He noted that, in papers filed with a lower court, the government had dismissed the Little Sisters’ fears about signing the form as an “invisible dragon.” In fact, said Bloomberg, the LIttle Sisters had every reason to avoid signing a document that would trigger such provisions. And he noted that when criminal conspiracy charges are filed, those who “give material aid and assist someone to do wrong” are also held accountable.

Next Step Is Unclear
It is not yet clear what steps the high court will take now. Rassbach said during the press call that the Little Sisters’ lawyers would file a reply with the court, but he could not provide a timeline for when Sotomayor, or the entire court, might respond.
Douglas Laycock, an expert on religious-freedom issues at the University of Virginia Law School, told the Register, “A stay for three days after hearing from only one side tells you that she takes the issue seriously, but it doesn’t tell you what the whole court will do after they hear from both sides.”
Joan Frawley Desmond is the Register’s senior editor.

Courtesy of NCR