On Tuesday, Supreme Court Justice Sonia Sotomayor issued an order preventing the government from enforcing the Obamacare contraceptive mandate on the Little Sisters of the Poor.
Sotomayor’s decision to delay the contraceptive portion of the law was joined by the U.S. Court of Appeals for the District of Columbia Circuit, which also issued an emergency stay for Catholic-affiliated groups challenging the contraceptive provision, including the Archdiocese of Washington, D.C., and Catholic University.
Separately, Lawyer Noel J. Francisco had said in appeals to Chief Justice John Roberts and Justice Elena Kagan that the mandate would “expose numerous Catholic organizations to draconian fines unless they abandon their religious convictions and take actions that facilitate access to abortion-inducing drugs, contraceptives and sterilization for their employees and students.”
In December of 2012, I reported that the Little Sisters of the Poor saw the very real threat of having to leave their apostolate in the United States if they could not gain an exemption from the HHS mandates on contraception and abortion coverage through the Affordable Care Act.
This morning, Matt Bowman brought to light the moral dilemma facing the Little Sisters of the Poor, and the reason why they can’t simply sign the required form designating a third party administrator to do, for lack of any other way of putting it, the dirty work for them:
Obamacare says that when an entity is in a self-insured plan, like the Little Sisters are, they must file a certification form. But it’s not like other certification forms that the rule requires. It does not merely express their religious objections. The form also, specifically and additionally, “designates” their “third party administrator” to go get the abortifacient and birth control payments. As I explained at Mirror of Justice, in a message posted by Prof. Marc DeGirolami:
The final regulation even points out that this added language is legally operative: the designation words themselves are what cause the TPA’s obligation to go get the coverage. Without the designation telling the TPA to go get that coverage, the TPA wouldn’t have any duty to be involved. … So it’s important to observe that for self-insured religious non-profits, there’s a “certification,” but there’s also a “designation”…. The designation is, by definition, an act of contracting and arranging for the coverage.
The government even conceded, in Cardinal Wuerl’s lawsuit, that “in the self-insured case, technically, the contraceptive coverage is part of the plan.” It’s not separate.
And yet today, the Associated Press is reporting that the Justice Department is now pressuring Justice Sotomayor to dissolve her stay. They are, it appears, using the same arguments:
The Justice Department Friday called on Justice Sonia Sotomayor to dissolve her stay on the contraceptive coverage requirement of the Affordable Care Act, also known as Obamacare.
The government says religious nonprofit groups can certify that they don’t want to provide contraceptive coverage. A group of Catholic nuns who run nursing homes sued, saying even signing that form violates their beliefs.
Government lawyers say the nuns’ insurance is a “church plan” that is not required to provide contraception coverage and has decided not to, so they have no legal basis to complain.
This relentless pursuit by the administration to gain acquiescence from religious institutions which morally object to the mandate is nothing short of religious persecution. It would be remarkable that the most progressive administration in US history is also the most intolerant, if history didn’t show us where the progressive path leads those nations that choose to follow it.