The Little Sisters’ absurd case against Obamacare

Justice Sonia Sotomayor roiled Obamacare a teensy bit just before presiding at New York's New Year's Eve festivities.
Justice Sonia Sotomayor roiled Obamacare a teensy bit just before presiding at New York’s New Year’s Eve festivities.
(Charles Sykes / Associated Press)

The final wheeze of Obamacare news that crossed the wires in 2013 was a New Year’s Eve emergency injunction granted by Supreme Court Justice Sonia Sotomayor for a group of Catholic nuns who operate nursing homes in Denver and Baltimore.

At first blush, Sotomayor’s ruling looked like, well, a Hail Mary victory for opponents of the Affordable Care Act, specifically the ACA’s mandate that contraceptive coverage be provided to all insured persons at no cost.

But first blushes can be deceiving. In the first place, the injunction was good only until Friday--Sotomayor required that government attorneys file a reply brief before the clock strikes noon, as they did. Their brief is here. Second, it applies only to the plaintiffs, who are the Little Sisters of the Poor, and their insurance administrator, Christian Brothers Services.


Third--and as a federal judge and two appellate judges in Denver have already ruled--the plaintiffs’ arguments are absurd. What they’re objecting to, when you boil it down, is to signing a form stating (truthfully) that they’re exempt from providing contraceptive coverage to their employees.

Here’s a quick canter through the background.

The case arises from the government’s solution to the dilemma created by the ACA’s contraception mandate for certain religious groups. The government finesse, you may recall, was to exempt church-based employers from providing that coverage directly. Instead, their insurers were to provide the coverage, which is to be reimbursed by the government. All that was required was for the religious employers to give the insurers a form stating that they were exempt, and therefore the contraception ball was in the insurers’ hands.

The Little Sisters, however, maintain that because the third-party insurers that inherit the responsibility for covering contraceptives can’t do so without receiving the signed form, then their signing the form itself is tantamount to their participating in the provision of contraception. And that violates their religious beliefs.

In their application to Sotomayor, the plaintiffs cited “the sheer enormity of the government’s pressure on them to forgo their religious exercise of not providing coverage for the drugs and devices at issue and not authorizing or helping others to do so.” They calculated that failing to sign the form would expose them to fines of $6,700 a day, which would break them.

Amanda Marcotte of put her finger on the spectacle of plaintiffs “trying to weasel out of nothing more onerous than signing a piece of paper.” Yet there’s one crowning absurdity she missed, but has been noted by the government: The sisters’ insurer is also exempt from the mandate, because the health plan isn’t governed by ERISA, the federal law under which the mandate is imposed. In other words, signing the form doesn’t lead to contraceptive services either. That’s acknowledged by the feds.

This is the point at which the lower court plainly lost its patience. The plaintiffs’ claim “reads too much into the language of the Form, which requires only that the individual signing it certify that her organization opposes providing contraceptive coverage,” wrote District Judge William J. Martinez. And in this case, he added, the form “does not authorize any organization to deliver contraceptive coverage to Little Sisters’ employees.

He said that requiring an organization merely to certify that it opposed contraception under circumstances hardly rose to the level of a burden on anyone’s religious beliefs.

For all that, the case does present another example of the dilemmas faced by religious organizations that want to keep one foot in the secular world, but also want the right to withdraw it of their own volition. Fulfilling their calling means hiring people and providing pay and benefits within the bounds of the law.

It’s natural, one supposes, for some employers to try to place limits on how that compensation is used, but how far do the limits extend? As has been pointed out in the Hobby Lobby cases--the lawsuits now before the Supreme Court in which private employers are objecting to the contraceptive mandate as infringements on their owners’ beliefs--the employers can’t keep their workers from spending their wages on anything they choose, even if it offends the bosses’ religious sensibilities. But that’s because there’s no way to impose such limits, not because they don’t wish to. (Some employers would probably do so if they could.)

The Little Sisters are a special case. They, or their lawyers at the Becket Fund for Religious Liberty, seem to have kept themselves up nights worrying over infringements on their religious beliefs that appear from the court record to have been conjured out of thin air. They won last year, when the government exempted religious organizations from covering contraceptives directly. But they’re still digging deep to find, somewhere in a law designed to bring health coverage to millions, grounds to object.