Little Sisters lay out alternatives to HHS mandate before Supreme Court

Washington D.C., Apr 13, 2016 / 14:26 pm

Asked whether there are ways for the government to provide contraceptive coverage that do not require them to violate their consciences, the Little Sisters of the Poor are saying "yes."

"These non-profits said 'yes' to the Supreme Court, just as they have been saying 'yes' to the federal government for many years." said Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty, representing the Little Sisters of the Poor.

Rienzi explained their supplemental brief submitted to the court on Tuesday outlining alternative means of ensuring government-mandated contraception coverage for employees without the direct or indirect participation of objecting employers.

"At some point, the government has to learn how to take yes for an answer. The religious objection has always been only to those methods of distribution that forced the non-profits and their plans to participate," he continued.

The briefs by both the government and the plaintiffs were submitted to the Supreme Court Tuesday, April 12. The court in March had asked whether the parties believed that an alternative way existed of ensuring that employees receive contraceptive coverage mandated by the Department of Health and Human Services under the Affordable Care Act, without religious non-profits participating in a way that they believed made them morally culpable.

Not since the 1950s in Brown v. Board of Education has such a request been made by the Supreme Court in the middle of a case, Lyle Denniston of SCOTUSblog noted.

The responding brief by the Little Sisters and fellow plaintiffs answered that "Yes," such paths exist, "including the way described in the Court's order." That process would consist of the religious non-profits, when contracting with their potential insurer, telling the insurer they do not want to offer the objectionable coverage in their health plan.

Then, the insurer would – separate from the health plan and at a separate cost – set up coverage of birth control for employees. The religious charities and non-profits wouldn't have to issue any further notice of their objection.

This coverage must be "truly independent" of the religious employers, the brief maintained, "provided through a separate policy, with a separate enrollment process, a separate insurance card, and a separate payment source, and offered to individuals through a separate communication."

Another acceptable way would be a "regulatory requirement" directly from the government that insurers provide the coverage separately, and contact employees separately to set up the government-sponsored coverage.

The point of the case is not for the Little Sisters and other objecting religious charities to say that people cannot get contraceptives, but simply that "I just can't be involved," Rienzi explained in a press phone conference Wednesday morning. The notion that they want to ban all contraceptives is "just a cartoon version of what the petitioners have claimed," he said.

In their arguments before the Supreme Court, the Little Sisters and other plaintiffs – including Bishop David Zubik of Pittsburgh, the Archdiocese of Washington, the pro-life group Priests for Life and several Christian colleges – had argued that the current "accommodation" offered them by the government does not protect their religious liberty.

The current process involves non-profits sending the government a notice of their objection to providing coverage for contraceptives, sterilizations, and drugs that can cause abortions. The government then notifies the insurer, who provides the coverage separately.

The plaintiffs say that since sending the government their objection is the action that prompts the coverage through their own health plans, they are forced to act as "gatekeepers" and "facilitate" the objectionable coverage. Furthermore, they argue the government is "hijacking" their health plan, which is an agreement between them and their insurer.

In the proposed process outlined in their supplemental brief, the Little Sisters say that as long as they can tell the insurer outright that they don't want the coverage in their health plan, they don't give any further notice of their objection, and the coverage is provided separately from their plan, this would distance themselves to an acceptable length from the process in terms of their moral culpability.

"They have to be out of it, and it can't be something that is made part of their plan," Rienzi stressed.

Employees, insurance companies and the federal government are aware of who is enrolled in a given company health plan, he said, so the government could easily take action such as publishing a notice about how the public could sign up for separate free contraceptive coverage.

"There are ways to do this without us," Rienzi said of the government's goal of providing contraceptive coverage to employees.

"Other states also have devised means of allowing individuals to contract directly with their insurance companies to obtain contraceptive coverage should their employer-sponsored plan exclude it for religious reasons," the Little Sisters' brief stated.

It happens "all the time" with dental and vision coverage, Rienzi said. The brief mentions this scenario, "in which individuals separately contract with insurance companies to obtain forms of coverage that are excluded from their principal health plans."

A ruling in the Little Sisters' case is expected this summer. The ruling could have far-reaching implications, as more than 300 plaintiffs across the country have filed lawsuits challenging the federal contraception mandate on grounds of conscience.

Founded in 1839 by Saint Jeanne Jugan, the Little Sisters of the Poor are dedicated to caring for the elderly and dying poor in more than 30 countries worldwide. The sisters operate 27 houses for the elderly in the United States.