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U.S. Urges High Court to Reject Nuns’ Appeal on Birth Control

Image: Mother Patricia Mary

Mother Patricia Mary is shown in a nursing home chapel run by Little Sisters of the Poor, in Denver, Colo. The nuns are opposed to the birth control mandate in the new health care law, and they don't want to sign a waiver that the government says would give them a religious exemption. Brennan Linsley / AP

A group of Colorado nuns don't have any reason to appeal the birth control mandate in the health care law because they don't have to provide contraception anyway, the U.S. government argued on Friday.

It’s an early skirmish in a year expected to be full of battles over the so-called contraceptive mandate in the Obamacare law.

The administration says the group is already exempt from the law, because their insurance is provided by Christian Brothers Services. As a church organization, it’s excused from the law’s requirements. The nuns have said they don't want to sign a waiver asking for an exemption.

"They need only self-certify that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services," the Department of Justice wrote in its response.

All new insurance plans, including those provided by employers, must provide free birth control as part of a list of essential benefits, including vaccinations and cancer screenings.

When some religious groups objected, the Obama administration provided exemptions. And an older law, the 1974 Employee Retirement Income Security Act, exempts church plans from regulation anyway.

The Denver chapter of the Little Sisters of the Poor says it cannot even sign a waiver asking for an exemption. Supreme Court justice Sonia Sotomayor, who has responsibility for the 10th Circuit Court of Appeals where the group filed its latest appeal, granted a last-minute injunction on New Year’s Eve.

She gave the administration until Friday morning to respond.

“The question here is in order to receive that exemption, they have to fill out a form,” says Ian Millhiser, senior constitutional policy analyst at the Center For American Progress. “That form announces to the government that they have a religious exemption. Employees can use that form to get (birth control) from their insurer.” The Little Sisters say that the act of filling out the form makes them complicit to birth control, which they believe is sinful.

But no one who works for Little Sisters can get birth control under their plan, anyway, the DoJ argues. "Given these circumstances, applicants' concern that they are 'authorizing others' to provide coverage lacks any foundation in the facts or the law," the DoJ said in its filing to the Supreme Court.

Mark Rienzi, chief counsel for the Becket Fund for Religious Liberty, which represents the Little Sisters, says the government is bullying the nuns. “The government now asks the Supreme Court to believe that the very thing it is forcing the nuns to do—signing the permission slip—is a meaningless act," Rienzi said in a statement. "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? The government’s brief offers no explanation for its surprising insistence on making the Little Sisters sign a form the government now says is meaningless."

"The government’s brief offers no explanation for its surprising insistence on making the Little Sisters sign a form the government now says is meaningless." --Mark Rienzi, chief counsel for the Becket Fund for Religious Liberty

Rienzi's is the same law firm helping Hobby Lobby, other for-profit businesses and some colleges and universities that are also challenging the contraceptive mandate.

The Little Sisters case is separate from these cases, in which the owners object to birth control and argue they shouldn’t have to provide it. The Supreme Court will hear arguments on Hobby Lobby's case in March. More than 80 suits have been filed against the mandate.

Right now, the Supreme Court’s involvement in the Little Sisters case is minimal. Sotomayor can send it back to the federal courts or she can ask her colleagues to consider it as a full court.

It's all a bit of a sideshow anyway, argues Cecile Richards, president of the Planned Parenthood Federation of America. "Today, 27 million women have access to birth control without a co-pay under the Affordable Care Act, and that’s not affected by the Supreme Court reviewing the administrative mechanism that religious groups can use to opt out of covering birth control," Richards said in a statement.

“This spring, a bigger question faces the Court, which could affect millions of people: whether women’s bosses at for-profit companies can decide to deny them access to birth control. This bigger question has a very real impact on millions of women’s lives."

Brigitte Amiri of the American Civil Liberties Union, which supports the mandate, says she is not concerned by Sotomayor’s action.

“Justice Sotomayor wants to make a thoughtful decision,” she told NBC News. “I think this temporary holding pattern isn’t a cause for concern at this point. It allows for all briefs to be filled out.”

“It was like, ‘let’s take a deep breath’,” agreed Judy Waxman of the National Women’s Law Center.

Archbishop Joseph Kurtz of Louisville, president of the U.S. Conference of Catholic Bishops, notes that the White House has extended more than a few deadlines for people trying to buy health insurance on the troubled exchanges. “I understand that legal issues in these cases will ultimately be settled by the Supreme Court,” Kurtz wrote in a letter to Obama.

“In the meantime, however, many religious employers have not obtained the temporary relief they need in time to avoid being subjected to the HHS mandate beginning January 1. I urge you, therefore, to consider offering temporary relief from this mandate, as you have for so many other individuals and groups facing other requirements under the ACA.”