On Friday, January 3, 2014, the U.S. Solicitor General filed a memorandum in opposition to the emergency application for an injunction temporarily granted by the U.S. Supreme Court on December 31, 2013. The injunction temporarily enjoined the government from enforcing the contraceptive coverage requirements imposed by the Affordable Care Act (ACA) and its related regulations against the Little Sisters of the Poor Home for the Aged, pending the receipt of a response from the government and further order by the U.S. Supreme Court. 

According to the memorandum, the Little Sisters of the Poor Home for the Aged is a religious non-profit corporation that provides health coverage to its employees through a self-insured church plan and a third-party administrator that administers the plan. The Little Sisters of the Poor Home for the Aged, under the Religious Freedom Restoration Act of 1993 (RFRA), challenges the contraceptive mandate provided for under the ACA.

The ACA requires certain employers to provide their employees with a minimum level of health insurance. Further, the ACA requires non-exempt group plans to provide coverage without cost-sharing for preventative care and screening for women in accordance with guidelines created by the Health Resources and Services Administration (HRSA), an agency within the U.S. Department of Health and Human Services (HHS). HRSA adopted the Institute of Medicine’s recommendation to require non-exempt group plans to cover “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” On February 15, 2012, HHS, the U.S. Department of the Treasury, and the U.S. Department of Labor (collectively, the Departments) published final rules memorializing the guidelines. Then, on July 2, 2013, the Departments released additional final rules clarifying the religious employer exemption. To be eligible for the religious employer exemption,  an organization must oppose providing coverage for some or all of any contraceptive services required to be covered on account of religious objections; be organized and operating as a nonprofit entity; hold itself out as a religious organization; and self-certify that it satisfies the specified criteria.

The government argues that the Little Sisters of the Poor Home for the Aged has “no legal basis to challenge the self-certification requirement or to complain that it involves them in the process of providing contraceptive coverage.” The government further argues that “the [Little Sisters of the Poor Home for the Aged’s] religious exercise is not substantially burdened by the requirement that they sign the certification form expressing their religious objection to contraceptive coverage in order to exempt themselves from the contraceptive-coverage provision” under the ACA.

The Little Sisters of the Poor matter is just one of many lawsuits filed related to the ACA’s contraceptive mandate, including several reported previously on this blog. Unlike the Little Sisters of the Poor Home for the Aged, the challengers to the ACA contraceptive mandate in other cases reported on this blog involve for-profit corporations that are ineligible for the religious accommodations set forth in the final rules. 

Posted by Jennifer K. Shanley

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