Late Friday, the Roberts Court unceremoniously extended an order that blocked the Little Sisters of the Poor from having to comply with the contraception mandate. The order was issued without an opinion explaining its reasoning; instead, it rather tersely laid out what steps the Little Sisters would have to take to avoid the penalties associated with not completing the self-certification form. But what might have looked like yet another setback in the fight for equal coverage for comprehensive reproductive health care may actually prove to be the key to Obamacare supporters’ ultimate success.
EBSA 700 is the form that religiously affiliated nonprofits with a religious objection to the contraception mandate must fill out to claim an exemption to the requirement. Now, instead of filling out EBSA 700, the Little Sisters must tell the government, in writing, that the group is a nonprofit and that they “hold themselves out as religious and have religious objection to providing coverage for contraception services.”
If you’re having a difficult time discerning the difference between what the Little Sisters object to doing under Obamacare and what the Supreme Court just ordered they do in order to reap the benefit of an extended injunction, and thus continue to avoid complying with the contraception mandate by refusing to complete EBSA 700, you’re not alone. That’s because there’s no real, discernible difference. “This case raises a very narrow and specific question about the administrative mechanism that religious groups use to claim their exemption,” Cecile Richards, president of the Planned Parenthood Federation of America, said in a statement. “This is a case about paperwork, not religious liberty.”
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Some, like Slate’s Emily Bazelon, argue that there’s more nuance in the group’s objection to completing the exemption form than meets the eye, and that what may just be an administrative task to you and me could actually be a act of significant religious coercion for the Little Sisters. This argument takes at face value the nuns’ claim that completing EBSA 700 forces them to participate in an architecture of sin—a claim the Little Sisters make even though there’s likely no chance their employees will be able to receive contraception coverage, even from an independent party.
If that’s the case, and if completing EBSA 700 is tantamount to state coercion over religious beliefs, then the Little Sisters are in a pinch, since the Supreme Court’s order requires, arguably, substantially the same conduct. But presuming the Little Sisters comply with the Supreme Court’s order, then they will have to explain the difference, in terms of an impermissible burden on their religious beliefs, between completing a government form and complying with a federal court order.
And that’s the catch-22 the Little Sisters find themselves in after last week’s order. How exactly will the nuns be able to show that self-certifying under Obamacare is a “substantial burden” on those sincerely held religious beliefs if they are complying with the law’s requirements, face no threat of fine or related government enforcement action, and their employees can’t even access contraception coverage should they want it?
At the close of Friday’s order, the Supreme Court was clear that its decision to extend the injunction was in no way a decision on the merits of the group’s claims, but maybe that’s not entirely the case. For now, the Little Sisters of the Poor do not have to complete the self-certification form and send it to the federal government. Instead, the group has to complete the self-certification process devised by the Roberts Court and submit it there. Meanwhile, the group must go before the Tenth Circuit Court of Appeals and argue the self-certifying steps it just completed are a substantial burden on its religious rights. It is, in many ways, similar to the Proposition 8 trial, in which opponents of marriage equality were forced to put forward their “evidence” that children raised by same-sex couples were somehow in danger, or that acceptance of marriage equality would bring an end to “traditional” civil marriage. Those claims just could not survive the basic scrutiny of a trial. And thanks to the Supreme Court’s order Friday, there’s a good chance the Little Sisters’ case won’t either.