Justices Are Asked to Reject Nuns’ Challenge to Health Law


The Justice Department said the requirements did not impose a “substantial burden” on the nuns’ exercise of religion because they could “opt out” of the obligation by certifying that they had religious objections to such coverage.

The Little Sisters “need only self-certify that they are nonprofit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services,” the administration said in a brief filed with the Supreme Court by the solicitor general, Donald B. Verrilli Jr.

In addition, he said, the nuns would need to send a copy of the certification to an entity that administers their health plan, Christian Brothers Services.

On Tuesday night, hours before the contraceptive coverage requirements were to take effect, Justice Sonia Sotomayor of the Supreme Court temporarily blocked the Obama administration from enforcing them with respect to the nuns and certain other religious groups. The Little Sisters of the Poor operate nursing homes for poor people in the United States and around the world.

In its filing with the court on Friday, the administration said the nuns “have no legal basis to challenge the self-certification requirement or to complain that it involves them in the process of providing contraceptive coverage.”

If the nuns sign the certification required by federal rules, the administration said, neither they nor their health plan nor the entity that manages their health plan will be under any legal obligation to provide coverage of birth control.

“With the stroke of their own pen,” Mr. Verrilli said, the nuns “can secure for themselves the relief they seek from this court.” Accordingly, he said, the court should lift the stay imposed by Justice Sotomayor.

The nuns disagreed.

“The government demands that the Little Sisters of the Poor sign a permission slip for abortion drugs and contraceptives, or pay millions of dollars in fines,” said Mark L. Rienzi, a lawyer at the Becket Fund for Religious Liberty, who represented the nuns in the lawsuit. “The sisters believe that doing that violates their faith.”

Eric C. Rassbach, a deputy general counsel of the Becket Fund, said the relief offered by the government was not a complete exemption. By signing the form, he said, the nuns would be “designating someone else to provide the contraceptive drugs and devices” to which they object.

“It makes them complicit,” Mr. Rassbach said. The nuns do not want to sign the form because it would “authorize and designate” the administrators of their health plan, including Express Scripts, to provide contraceptives, he said.

“The Little Sisters and other applicants cannot execute the form because they cannot deputize a third party to sin on their behalf,” the nuns said in a reply brief filed Friday six hours after the government filed. The nuns said that they “face ruinous fines for their religious refusal to sign the forms,” and that this threat was a substantial burden on their exercise of religion.

 However, the Obama administration said Friday that it could not compel Christian Brothers Services to provide contraceptive coverage to employees of the Little Sisters nursing homes. In any event, it said, the Christian Brothers company does not intend to provide such coverage.

Moreover, the Obama administration said that the Affordable Care Act did not really impose an “employer mandate.”

The birth control requirements “apply only if an employer offers a group health plan,” the administration said in its brief.

“Employers, however, are not required to offer group health plans in the first place,” the brief continued. “Large employers (those with more than 50 full-time-equivalent employees) face a potential tax if they do not provide coverage, but that gives them a choice between two legal options: provide a group health plan or risk payment of the tax.”

Mr. Verrilli’s brief said that the certification form would exempt the nuns from any “requirement to furnish or pay for contraceptive coverage (and shield them from any tax liability for not doing so).” In addition, it said, “employees of the nursing homes they operate will not receive such coverage.”

“Certification would result in the complete denial of coverage for the drugs and devices to which applicants object,” the brief said.

The nuns unsuccessfully challenged the Obama administration rules in the Federal District Court in Denver, where they operate a nursing home. They are now seeking an injunction to block enforcement of the rules while they pursue their case in the United States Court of Appeals for the 10th Circuit, in Denver. The circuit court declined earlier this week to grant such an injunction.

The Little Sisters’ lawsuit is one of many challenging the contraceptive coverage requirement. Supporters of the requirement said the litigation did not affect most Americans.

“Today, 27 million women have access to birth control without a co-payment under the Affordable Care Act,” said Cecile Richards, the president of the Planned Parenthood Federation of America. “That’s not affected by the Supreme Court reviewing the administrative mechanism that religious groups can use to opt out of covering birth control.”