DOJ rejects nuns' argument on ObamaCare contraception mandate

The Obama administration on Friday offered a vigorous defense of the Affordable Care Act's "birth control mandate," disputing as unfounded the religious challenge that led a Supreme Court justice to partially block the provision from taking effect this week. 

In court papers filed ahead of a 10 a.m. deadline, the Justice Department asked the High Court to lift its stay on the contentious regulations, pointing to language allowing certain nonprofit groups to easily opt out of paying for contraception as part of employee health insurance plans.


Groups, including the order of nuns who won a temporary reprieve this week, need only self-certify that they are religious nonprofit organizations and object to the requirement.

"With the stroke of their own pen, applicants can secure for themselves the relief they seek from this Court — an exemption from the requirements of the contraceptive-coverage provision," the U.S. Solicitor General wrote in a 37-page motion seeking denial of a permanent injunction. 

The missive is the latest salvo in a Supreme Court-bound legal battle over the health law's requirement that workers be offered free contraceptive services as part of their employers' insurance coverage.

The mandate has drawn scores of lawsuits from corporations and other organizations, which complain they are being forced to choose between violating the law or their own religious beliefs.

The administration and supporters of the law contend that the mandate is both constitutional and needed for women’s health. They note that the regulations exempt churches and do not require religious nonprofit organizations “to contract, arrange, pay, or refer for contraceptive coverage.”

Instead, changes made to the original language shift the responsibility of providing the coverage from the faith-based institutions to their insurance companies or a third-party administrator.

Earlier this week, White House press secretary Jay Carney said the administration is confident the justices would ultimately hold up the mandate.

"We believe this requirement is lawful and essential to women’s health and are confident the Supreme Court will agree," Carney said.

His remarks followed Justice Sonia Sotomayor’s eleventh-hour order in response to a plea from the Little Sisters of the Poor Home for the Aged, a Colorado-based order of nuns.

The Catholic nonprofit argued that, while it would not directly have pay for the benefits under ObamaCare regulations, opting out would simply “authorize someone else to provide” services to which it objects.

The stay, handed down just hours before the mandate took effect on Jan. 1, prevents the Little Sisters from facing fines until the legal issues surrounding the case are resolved.

“We hope and pray that we will receive a favorable outcome in order to continue to serve the elderly of all faiths with the same community support and religious freedom that we have always appreciated," the Little Sisters said in a statement.

Sotomayor’s stay also gives temporary reprieve to roughly 200 other Catholic groups that offer benefits under the health plan used by the Little Sisters.

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 New Year’s Eve order.

She gave government officials until 10 a.m. EST Friday to respond. It is unclear how soon the court would make a final decision on whether to leave the injunction in place.

The formal response repeats the administration’s stance that the group’s concerns are addressed in the revised rule unveiled in June.

“If an eligible organization chooses not to provide contraceptive coverage, the regulations create another mechanism for providing such coverage,” the Justice Department argues in court papers.

The case involving nonprofits is separate from a high-profile case brought by Hobby Lobby, a Christian-owned craft chain that argues the mandate trammels on religious expression for for-profit corporations as well.

The Supreme Court announced last year that it would take up that case in the coming months.

The Hobby Lobby case is expected to be the first legal challenge to ObamaCare to make its way to the High Court since the justices deemed law’s individual mandate constitutional 17 months ago.

This story was updated at 11:32 a.m.