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Obama Administration Tells Supreme Court Not To Weaken Birth Control Mandate Under Obamacare

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"Applicants have no legal basis to challenge the self-certification requirement or to complain that it involves them in the process of providing contraceptive coverage," the Justice Department said in its filing. "As both of the lower courts recognized, this case involves a church plan that is exempt from regulation under the Employee Retirement Income Security Act... Employer-applicants’ third-party administrator therefore will be under no legal obligation to provide the coverage after applicants certify that they object to providing it."

The challenge is different from the two birth control cases the Supreme Court agreed to hear this year, which also seek relief from the mandate. Those groups are for-profit corporations which are required under an Obamacare regulation to provide contraception for female employees, such as Plan B, without a co-pay in their group insurance plans. This lawsuit, however, was brought by nonprofit entities who are exempt from having to provide the contraception, due to an administrative carve-out issued in 2012 that lets them sign an opt-out form and pass the cost on to the insurance provider. But the suing entities contended that even signing the form infringes on their religious liberty by ostensibly enabling the women they employ to obtain birth control straight from the insurance provider.

In this case, the employees of suing groups may not be able to get birth control via their insurance even if the organizations opt out. That's because their group plan, which is administered by the Christian Brothers Employee Benefit Trust, may possibly qualify as a "church plan" -- houses of worship are exempt entirely from the mandate.

For these reasons, the Obama administration dismissed the plaintiffs' claim.

"Given these circumstances, applicants’ concern that they are 'authorizing others' to provide coverage lacks any foundation in the facts or the law," the Justice Department said in its filing. "The application should be denied."

A district court and appeals court rejected the nonprofit groups' challenge,
but Sotomayor's decision to issue the emergency stay breathes some life into the case. If the injunction is extended, the courts may end up ruling on the merits of the case, would could have broader implications for the birth control mandate.

"The government demands that the Little Sisters of the Poor sign a permission slip for abortion drugs and contraceptives, or pay of millions in fines," Mark Rienzi, Senior Counsel for the Becket Fund for Religious Liberty, and Lead Counsel for the Little Sisters, said in a statement. "The Sisters believe that doing that violates their faith, and that they shouldn’t be forced to divert funds from the poor elderly and dying people they’ve devoted their lives to serve."

Justice Department Response To Supreme Court: Little Sisters Injunction

About The Author

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Sahil Kapur is TPM's senior congressional reporter and Supreme Court correspondent. His articles have been published in the Huffington Post, The Guardian and The New Republic. Email him at sahil@talkingpointsmemo.com and follow him on Twitter at @sahilkapur.