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US asks top court not to extend Obamacare birth-control exemption

Justice Sonia Sotomayor had granted a temporary injunction that prevents the government from enforcing a contraception mandate on a Roman Catholic group.
Jonathan Ernst/Reuters

The U.S. government on Friday asked the Supreme Court not to extend the temporary exemption of two Roman Catholic–affiliated groups from an Obamacare provision that requires employers to provide insurance policies covering contraception.

On Tuesday night, Supreme Court Justice Sonia Sotomayor had granted a temporary injunction preventing the government from enforcing the so-called contraception mandate against the Little Sisters of the Poor and Christian Brothers Services while litigation on the issue continues.

The two religious organizations have filed a lawsuit accusing the federal government of forcing them to support contraception and sterilization — practices they say violate their religious beliefs — or face steep fines.

In its filing on Friday, the government said the groups have no legal basis to file the lawsuit because the insurance plan in question is a “church plan.” The government has already acknowledged that it cannot force contraception coverage on churches themselves, but only on religious organizations that employ people of other faiths.

The Little Sisters of the Poor is a Baltimore-based order of nuns that runs nursing homes across the country. Christian Brothers Services administers health care plans for Catholic organizations.

Now that the court has received the government’s filing, it will decide whether to extend the injunction while the case continues in lower courts. There is no deadline for court action, and Sotomayor can make the decision herself or refer it to the whole court, in which case all nine justices will decide.

The case coincides with the expansion of coverage under the 2010 Affordable Care Act, widely known as Obamacare — the most sweeping U.S. social legislation in 50 years.

The health care law requires employers to provide insurance covering preventive services for women, including contraception and sterilization. There is an exception for religious institutions such as houses of worship that mainly serve and employ members of their own faith — but not for schools, hospitals and charitable organizations that employ people of other faiths.

Under a compromise, eligible church-affiliated nonprofit organizations must provide a “self-certification” — described by one lower court judge as a “permission slip” authorizing insurance companies to provide the coverage. Challengers say that step alone violates their religious rights, regardless of whether employees ultimately receive contraception coverage.

They also point to court papers in which the government has said it is still looking at ways to enforce the contraception mandate against church plan administrators.

In a separate case in U.S. District Court in Washington, D.C., the government said in a November filing that officials “continue to consider potential options to fully and appropriately extend the consumer protections provided by the preventive services coverage regulations to self-insured church plans.”

Throughout the country, Catholic groups are asking the courts to exempt them temporarily from the mandate while litigation continues. Most courts have granted the requests. The mandate, which was due to take effect for the organizations on Wednesday, is already in place for many women who have private health insurance.

In other separate cases, the Supreme Court has already agreed to hear oral arguments on whether for-profit corporations have the basis to object to the contraception mandate on religious grounds. The court is due to hear the arguments in March and decide the two consolidated cases by the end of June.

The Affordable Care Act aims to dramatically reduce the number of Americans with no health insurance, estimated by the government at more than 45 million.

Republicans oppose the law, and hope their stance gains them seats in November congressional elections. Their hopes have been buoyed amid public anger over massive glitches in the website used to enroll people in insurance programs under the act.


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