Analysis Law and Policy

Even the Nuns’ Birth Control Lawsuit Is About Corporate Power, Not Religious Freedom

Jessica Mason Pieklo

Despite conservatives' claims, the evidence shows the legal challenges to the contraception mandate have nothing to do with birth control at all.

Read more of our coverage on the Little Sisters of the Poor case here.

2013 came to a close with a flurry of activity, and confusion, around the birth control benefit in the Affordable Care Act, with Supreme Court Justice Sonia Sotomayor granting a last-minute request by a group of Catholic nonprofits challenging the exemption process to the health-care law. The nonprofits, led by a group of nuns who operate assisted living facilities in Colorado and Maryland, put forward the familiar refrain of an overzealous Obama administration running roughshod over religious freedom in the name of its health-care reform agenda. But unlike the group of secular, for-profit corporations that are challenging the health-care law’s basic requirement that all qualified employers insure all their employees equally, including by providing full access to preventative care like contraception, or face financial penalties, the Little Sisters and similar religious nonprofits don’t have to comply with the law’s requirement to provide birth control at no additional cost to their employees because they are exempt.

So if the Little Sisters don’t, and likely won’t ever, have to comply with the contraception mandate, then what is all the fuss about? As it turns out, paperwork.

EBSA 700 is the form used by religious nonprofits to self-certify their exempt status, and it is at the heart of the Little Sisters case. According to the nuns, completing the two-page form is tantamount to becoming an instrument of sin. The form requires a key person in the organization applying for the exemption to certify that “on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered, [that] the organization is organized and operates as a non-profit entity and [that] the organization holds itself out as a religious organization.” What the Little Sisters and other religiously affiliated nonprofit organizations find most objectionable about the form is that it exists at all and that, in order to take advantage of the broad religious exemption to the contraception mandate, any religiously affiliated nonprofit must execute it; this shifts the law’s requirement that employers provide access to equal insurance coverage to a health insurance company that then provides those contraceptive services in lieu of the religiously affiliated nonprofit. Thus, the nuns argue, the head of a religious organization filling out and signing that document is forced to become part of the overall “scheme” to deliver contraceptive services to their employees. The simple act of preparing and signing EBSA 700 is, they contend, a substantial burden on their exercise of faith and a violation of the Religious Freedom Restoration Act (RFRA).

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Not surprisingly, the Obama administration disputes the claim that completing EBSA 700 in order to take advantage of the religious exemption affects religious faith in any way, let alone substantially burdens a person’s faith. To begin with, the administration argues, once the form is filed by the religious organization, that ends the group’s involvement in the contraception mandate program. Once that form is filed, the organization has certified its status as exempt, and any obligation to provide contraception coverage is imposed by the ACA, not by the religious organization sponsoring the health plan. Furthermore, because these disputes center around employer-sponsored benefit plans, they fall under the umbrella of the Employee Retirement Income Security Act of 1974 (ERISA). According to the Obama administration, and further explained in this excellent piece by Sarah Posner, ERISA already bars any government regulation of an employee benefit plan run by a church. That prohibition on “church plans” is incorporated into the ACA. This means that, per the Obama administration, the plan administrator for the Little Sisters has no legal duty to provide the services at all, and there is no way to compel it to do otherwise. In other words, even if the Little Sisters loses its legal challenge to the mandate, it still won’t have to provide its employees with contraception coverage, and there’s nothing the administration can do about it.

If a “stroke of the pen” will get the Little Sisters entirely out from under the contraception mandate and all its requirements, as the Obama administration claims—and, even if it loses, the nuns won’t have to make contraception available to their employees anyway—what is going on with this case?

According to the Obama administration:

As this case comes to the Court, it is not about the availability or adequacy of a religious accommodation, but rather whether a religious objector can invoke RFRA to justify its refusal to sign a self-certification that secures the very religion-based exemption the objector seeks.

Put another way, this case isn’t about whether the law sufficiently protects religious organizations from being compelled to violate their faith; it’s about whether religious organizations can use federal law to shield themselves from the consequences of discriminatory behavior.

It’s clear the Little Sisters case is being used as a vehicle by conservatives to attack the “substantial burden” requirement under the RFRA, which requires that before a party is protected under the RFRA the party must show that the government action in dispute is a “substantial burden” on their religious rights. As ThinkProgress’ Ian Millhiser explains, any ruling that completing administrative paperwork to obtain a benefit constitutes a “substantial burden” would be a clear win for conservative culture warriors. With the “substantial burden” hurdle removed, complying with practically any law could be characterized as a religious objection and used by employers to avoid complying with a host of government regulations.

But what about the for-profit business and their legal challenges to the contraception mandate to be heard by the Roberts Court this spring? How do they factor into all this mess? The Little Sisters case doesn’t implicate those cases directly since in those cases secular, for-profit businesses are trying to take advantage of the exemption from the law the nuns already enjoy and expand the definition of religious exercise to include corporate, institutional religious rights. But, when these cases are taken together, it’s clear what’s at stake.

The contraception benefit in the Affordable Care Act is at its core an anti-discrimination provision, one that helps end the practice of providing unequal insurance benefits to employees on the basis of their gender. In the case of both Hobby Lobby and Little Sisters of the Poor, many of the employees at these organizations work hourly wages, and the cost of having contraceptives covered at no additional cost can mean an extra $40 to $50 a month. For Hobby Lobby and the other for-profit businesses challenging the law, the profit motive in denying contraception coverage is clear. But in the nuns’ case, it’s more muted, drowned out by hyperbolic hand-wringing by pundits over the Obama administration’s efforts to force nuns onto the pill. Add the fact that the nuns have absolutely nothing to lose in this case, and the crusade becomes even more apparent.

If conservatives get their way in these birth control benefit challenges, then secular, for-profit businesses will have the ability to avoid government regulation by asserting that compliance conflicts with corporate religious rights without having to show that regulation was a “substantial burden” on those rights. That opens the door to employers denying access to health care for other services they object to, whether it be HIV-related treatments or blood transfusions, and leaving employees with no legal avenues to challenge those denials. And with Catholic institutions taking up an ever-growing market share of health care-related businesses, and with a number of employees at those institutions being women who work hourly wages, that’s a significant and discriminatory coverage gap created within a law designed to do just the opposite. Finally, add to the contraception mandate fight conservatives insisting in a right to exclude from employment LGBTQ individuals by opposing the Employment Non-Discrimination Act, and its easy to grasp that the fight over insurance coverage for contraception was never really about birth control as much as it was about creating new legal protections to push back against the tide of progress made not just by passing the Affordable Care Act, but by the decades of civil rights advances that came before it.

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