Little Sisters threatened by HHS mandate, lawyers argue

Washington D.C., Jan 3, 2014 / 17:57 pm

Despite the claims of the U.S. Justice Department, the demands of the federal contraception mandate threaten the continued works of service performed by the Little Sisters of the Poor, their attorneys say.

Eric Rassbach, deputy general counsel with the Becket Fund for Religious Liberty, which is representing the religious sisters in court, charged that the government's claim amounts to "doublespeak" and "trivializes" the situation of the sisters.

For 175 years, the Little Sisters of the Poor have provided physical, spiritual and emotional care for the low-income elderly and dying in communities throughout the U.S.

Now, however, they are facing crippling fines due to the federal contraception mandate, which requires employers to offer health insurance plans including free contraception, sterilization, and some early abortion drugs for employees. Failing to comply results in fines of up to $100 per employee per day.

While the mandate includes a narrow religious exemption, the Little Sisters fail to qualify for it because they are not affiliated with a particular house of worship. Instead, the group falls under an "accommodation" by which religious employers can sign a form authorizing an insurance company or third party to provide payments for the products they find objectionable. Critics argue that these costs will ultimately be passed on to the objecting employers, despite the government's claims otherwise.

The Little Sisters asked that they be temporarily shielded from the mandate by an emergency stay, which was granted by U.S. Supreme Court Justice Sonia Sotomayor on Dec. 31, just hours before the mandate was to go into effect.

On Jan. 3, the Department of Justice responded to Sotomayor's order, arguing that the Little Sisters' "religious exercise is not substantially burdened" by the mandate because of the accommodation.

The Little Sisters contend that even being forced to sign a paper authorizing an outside party to provide the objectionable coverage is a violation of their religious beliefs.

The sisters are not alone in suing over the controversial regulation – lawsuits have been filed by more than 300 plaintiffs across the country. The majority have received preliminary injunctions while their cases work their way through the court system.

The U.S. Supreme Court has agreed to hear a case involving for-profit businesses run by religious individuals who object to the mandate. A decision is expected in that case later this year.

Archbishop Joseph E. Kurtz of Louisville, Ky., president of the U.S. Conference of Catholic Bishops, has asked the federal government that temporary protection from the mandate be extended to all religious employers who object to it. The government has not publicly responded to his request.

Rassbach responded to the Justice Department's statement by saying that "the biggest tell here is what the government is doing." He questioned why the government is "spending millions of dollars in legal costs" if it is, in fact, a minor matter for the nuns to sign the authorization form.

"In reality the government is acting as if the form matters a lot," he said, noting that the government has said "in the lower courts that the purpose of the form is to authorize drugs and devices" that the nuns find unconscionable.

"The idea that it's just a stroke of a pen trivializes the entire matter."