Little Sisters rejects government 'accommodation'

In a new filing at the 10th U.S. Circuit Court of Appeals, a major litigant in the contraceptive and abortifacient mandate battle rejected the federal government’s latest regulatory change, saying the new rules “change nothing of substance in this appeal.”

Little Sisters of the Poor and its insurer, Christian Brothers Services, which won an emergency injunction against the mandate from the U.S. Supreme Court at the beginning of the year, will continue their case at the 10th Circuit. The government filed a brief a few hours before Little Sisters did Monday night, saying it would also like to continue the case if the Catholic organization didn’t accept the new mandate rules.

The latest brief from Little Sisters is important because the major litigants against the mandate have not indicated whether they would accept the government’s latest “accommodation,” which it issued in late August in response to the Supreme Court’s orders protecting Little Sisters and Wheaton College from the mandate.

“Offering the Little Sisters another way to violate their undisputed religious beliefs changes nothing,” the nonprofit group’s brief read.

The previous iteration of the nonprofit regulation required such organizations to inform their own insurers of their objections to the mandate, filing out a form that authorized the insurers to cover the drugs themselves. Under the new regulation that is currently in force, nonprofits and for-profits notify the government of their objection instead of the insurer—while providing the contact information for the insurer to the government—and the government would arrange coverage of the objectionable drugs with the group’s insurer or third-party administrator.

The Little Sisters brief argued the new accommodation is different from what is outlined in the Supreme Court’s order because instead of just allowing the nonprofit to state its objection and win a reprieve from objectionable coverage, it must provide its insurer’s information to the government and thereby facilitate coverage it finds morally objectionable.

“The Little Sisters have never objected to merely identifying themselves so that the government can leave them alone,” the lawyers wrote. “What they object to is the government’s unending attempt to use them and their benefits plan as the vehicle for contraceptive distribution. ”

In the government’s reading, the Supreme Court order “recognized the importance of ensuring that women have access to contraceptive services with minimal obstacles.”

Little Sisters is unique in that it has a church-based insurer that, it argues, is exempt from the mandate requirements. The government argued in its brief that it could still arrange coverage on the Christian Brothers’ plan under a third-party administrator.

Little Sisters’ lawyers argue that the government has several alternative approaches to the one it has taken.

“The government easily could have eliminated the need for this appeal,” the Little Sisters lawyers wrote. “It could have exempted the Little Sisters as ‘religious employers’—just as it would if the Little Sisters’ homes were operated by Catholic bishops. It could have exempted church plans. It could have adopted the ‘most straightforward’ path of just providing contraceptives itself, such as through Title X or tax incentives. Most simply, it could just allow employees of religious objectors to purchase subsidized coverage on the government’s own exchanges. But instead of these obvious and more direct approaches, the government continues to insist that the only way the United States could possibly distribute contraceptives is with the forced participation of the Little Sisters and their plan.”

The lawyers for the nonprofit also showed exasperation with the government’s drawn out regulatory process for nonprofits, countering the government’s argument, repeated in courts across the country, that it has essentially bent over backward for nonprofits in issuing accommodation after accommodation.

“For years, the Little Sisters ... have carried on under the cloud of the government’s illegal threats,” the lawyers wrote.

In a technical detail, the government has not sought to remand the case to the District Court—a likely move if it thought the current accommodation was substantially different than the previous one. The government lawyers acknowledged in their brief, “The same legal principles apply to the augmented accommodations.”

The case is currently scheduled for oral argument at the 10th Circuit on Sept. 29.