Silence suggests Supreme Court divided over contraception case

The U.S. Supreme Court in Washington, D.C.
(Saul Loeb / AFP/Getty Images)

WASHINGTON — The surprising silence coming from the Supreme Court over the last week on a challenge to Obamacare by a group of Colorado nuns suggests justices are divided over what to with the complicated dispute.

On New Year’s Eve, Justice Sonia Sotomayor granted a temporary stay to the Little Sisters of the Poor, a Roman Catholic nonprofit charity that was seeking relief from an Affordable Care Act requirement that it formally request an exemption from offering contraceptives to its employees as part of its health plan.

Under the law, if religious nonprofits request an exemption, their insurer is obligated to cover the costs of providing contraceptives to any workers who request them.

Attorneys for Little Sisters said that even being asked to sign an exemption letter was a violation of their religious freedom because it would still trigger coverage for contraceptives, which they say violates their faith.


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Government attorneys asked the High Court to lift Sotomayor’s stay, arguing that the contraceptive coverage rule would have no effect on the Little Sisters or the employees of its nursing homes. Solicitor General Donald Verrilli said that because its insurance provider is also a church-run entity, it also will be exempt from the legal requirements set by the healthcare law.

Moreover, government attorneys say nonprofit religious organizations like the Little Sisters are not being unduly burdened since they do not have to pay for the contraceptives, which the Obama administration argues is a basic healthcare right for women.

At least 45 similar lawsuits have been filed by church-run schools, hospitals and charities.


The court has several options, but each comes with some problems. The justices could issue an order that blocks the government from enforcing the contraceptive coverage requirements for all nonprofit religious groups until they have handed down a final ruling on their legal challenge.

But that could take more than a year and would leave tens of thousands of employees without the full health insurance coverage promised by the new law. Moreover, at least some justices are likely to think the that Catholic nonprofit groups have a very weak claim, since they are not required to pay for or subsidize the contraceptives.

The court could lift Sotomayor’s order based on the government’s assertion that the Little Sisters of the Poor is shielded from the law. But that would not resolve dozens of similar claims that are pending in the lower courts.

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A third option would be for the court to grant the appeal in one of the pending cases and decide the legal issue by the end of the term in June. That would resolve the many pending cases, but the justices are usually reluctant to rule on the legal issue until at least one federal appeals court has weighed in.

They have already agreed to rule on whether for-profit companies run by conservative Christian families can opt out of providing contraceptives.

The nine justices are to meet Friday morning for their first conference of the year, offering them a chance to decide what to do next with the nonprofit religious groups.

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Twitter: @davidgsavage