The new year kicked off with a dramatic bit of news regarding the fight against the Affordable Care Act’s contraception mandate. On New Year’s Eve, Supreme Court Justice Sonia Sotomayor issued an injunction for the Little Sisters of the Poor Home for the Aged, a group of Catholic nuns who operate nursing homes in Colorado and Maryland. The Little Sisters aren’t arguing against providing contraception; the group is exempt from the mandate already. Rather, the Little Sisters are arguing against signing the paperwork required to self-certify their exempt status.
As it turns out, the group operates under a “church plan,” a belatedly recognized category that means Little Sisters employees can’t get contraception coverage directly from the organization’s insurance company, as is the case for employees of most exempted nonprofits under the Affordable Care Act (ACA). So the Little Sisters are fighting against signing a form that, even if signed, wouldn’t lead to contraception coverage for its employees anyway.
Little Sisters has been getting a lot of attention because it is an idiosyncratic case, and from the perspective of critics, a sterling example of how conservatives’ battle against the ACA’s contraception mandate looks more like culture-war ritual than a good-faith effort to productively and logistically resolve the conflict between church and state.
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As Sarah Posner writes at Religion Dispatches, “I’m not sure which part is more inexplicable: that the government didn’t figure this out sooner, or that the religious objectors are still complaining about it.”
While the Little Sisters case exposed the “church plan” loophole, the majority of nonprofits filing federal suits against the mandate do not operate under such a plan. A total of 45 nonprofits have filed federal lawsuits against signing the opt-out paperwork. With most of these exempt nonprofits, employees procure contraception coverage directly from their insurer after their employers opt out of the process.
So what does one of these typical cases look like?
Geneva College is a Christian college founded by the Reformed Presbyterian Church of North America, located about a half hour north of Pittsburgh. It was quietly granted an injunction right before Christmas.
Similar to arguments made by the for-profit cases going to the Supreme Court, Geneva College doesn’t object to all forms of birth control, but rather just what it calls “abortifacient products such as ella, Plan B, and intrauterine devices,” according to court documents.
Ella, Plan B, and IUDs are not abortifacients; the Food and Drug Administration classifies them as emergency contraception. The contraception mandate does not cover abortion.
Nonetheless, “Geneva … firmly believe[s] that the procurement, participation in, facilitation of, or payment of abortion”—including the use of what it incorrectly classifies as abortion-causing drugs—”violates the Commandment against murder.”
Echoing the argument made on behalf of the Little Sisters, Geneva College is arguing that signing the opt-out form violates the college’s religious freedom because it makes the institution the “sole trigger” and “central cog” for employees to obtain the services they object to.
In short, religiously affiliated nonprofits like Geneva College requested and received a mechanism to opt out of a mandate in the name of religious freedom, but are now claiming that using said mechanism also violates their religious freedom.
In discussing a similar case, Marty Lederman, deputy assistant attorney general in the Department of Justice’s Office of Legal Counsel, argued that the form isn’t an authorization—it’s essentially a release.
The argument against signing the paperwork demonstrates that for some of the groups challenging the contraception mandate, exemption is not enough, which raises the question: What would be?
“They’re saying that the government is not allowed to make any other arrangement for these women,” said Greg Lipper, senior litigation counsel with Americans United for Separation of Church and State, which has filed friend-of-the-court briefs supporting the mandate and represents Notre Dame students in that case. “It’s a hostage-taking maneuver.”
Geneva College is also a typical example of nonprofits that have filed suit against the mandate in that prior to the mandate, the forms of contraception the school now so vehemently opposes were actually covered by the school’s health insurance plan, unbeknownst to school leaders. According to court documents, “For a time, without the College’s knowledge, the insurer included coverage of ella, Plan B, and IUDs in the College’s employee health plan.”