BREAKING: Justice Sotomayor Blocks Implementation of HHS Mandate

Justice Sonia Sotomayor

By Kathy Schiffer

Only hours before the law was to take effect, Supreme Court Justice Sonia Sotomayor has blocked implementation of part of President Barack Obama’s signature health care law. 

The legislation in question would have forced religion-affiliated organizations to provide health insurance for employees covering a range of preventive care, free of charge, including contraception.  Failure to implement Obamacare coverage by the January 1 deadline would have resulted in substantial penalties.   Since the Catholic Church prohibits the use of contraceptives, lawyer Mark Rienzi argued that the mandated insurance was not acceptable.

Sotomayor’s stay follows a late-afternoon request to President Obama from Archbishop Joseph E. Kurtz, archbishop of Louisville and president of the US Conference of Catholic Bishops.  Archbishop Kurtz had asked President Obama to grant Catholic organizations temporary relief from penalties for noncompliance with the requirements of the HHS Mandate.  Archbishop Kurtz explained the consequences which the Affordable Care Act for Catholic social service and educational organizations:

Please consider, then, the result of your Administration’s current policies. In the coming year, no employer, large or small, will be required to offer a health plan at all. Employers face no penalty in the coming year (and only $2000 per employee afterwards) for canceling coverage against their employees’ wishes, compelling them to seek individual coverage on the open market. But an employer who chooses, out of charity and good will, to provide and fully subsidize an excellent health plan for employees – but excludes sterilization or any contraceptive drug or device – faces crippling fines of up to $100 a day or $36,500 a year per employee. In effect, the government seems to be telling employees that they are better off with no employer health plan at all than with a plan that does not cover contraceptives. This is hard to reconcile with an Act whose purpose is to bring us closer to universal coverage. 

According to a report from the Associated Press, Justice Sotomayor acted on a request from the Little Sisters of the Poor Home for the Aged in Denver.  The Sisters' request for an emergency stay had been denied earlier in the day by a federal appeals court.

According to Associated Press:

The government is "temporarily enjoined from enforcing against applicants the contraceptive coverage requirements imposed by the Patient Protection and Affordable Care Act," Sotomayor said in the order. She gave government officials until 10 a.m. EST Friday to respond to her order.

Mark Rienzi explained, "The Little Sisters are an order of Catholic nuns whose religious faith leads them to devote their lives to caring for the elderly poor. Not surprisingly, they have sincere and undisputed religious objections to complying with this Mandate.”

The Obama administration crafted a compromise, or accommodation, that attempted to create a buffer for religiously affiliated hospitals, universities and social service groups that oppose birth control. The law requires insurers or the health plan's outside administrator to pay for birth control coverage and creates a way to reimburse them.
But for that to work, the nuns would have to sign a form authorizing their insurance company to provide contraceptive coverage, which would still violate their beliefs, he said.

"Without an emergency injunction, Mother Provincial Loraine Marie Maguire has to decide between two courses of action: (a) sign and submit a self-certification form, thereby violating her religious beliefs; or (b) refuse to sign the form and pay ruinous fines," he said.

Sotomayor's decision to delay the contraceptive portion of the law was joined by the U.S. Court of Appeals for the District of Columbia Circuit, which also issued an emergency stay for Catholic-affiliated groups challenging the contraceptive provision. But one judge on the three-judge panel that made the decision, Judge David S. Tatel, said he would have denied their motion.

"Because I believe that appellants are unlikely to prevail on their claim that the challenged provision imposes a 'substantial burden' under the Religious Freedom Restoration Act, I would deny their application for an injunction pending appeal," Tatel said.

The full press release from the USCCB and letter from Archbishop Kurtz to President Obama can be viewed here.