Obama-Appointed Supreme Court Justice Sotomayor at Odds with Administration on Contraception Provision of Obamacare

Just before the new year of 2014 was rung in, U.S. Supreme Court Justice Sonia Sotomayor issued an injunction temporarily blocking the Obamacare provision that would require the Denver-based Catholic order Little Sisters of the Poor to offer its employees contraceptive coverage. According to Mark Rienzi, an attorney with the Becket Fund for Religious Liberty, which represents the group, this injunction keeps the Little Sisters “from being forced to violate their religion.”

“The U.S. government is big, powerful and expansive,” Mr. Rienzi said. “It’s got lots of ways to give out contraceptives. There’s no reason for the government to make nuns be a part of this.”

Quoted in a Washington Times story by Meredith Somers, U.S. Senator Roy Blunt, Missouri Republican, also applauded Justice Sotomayor’s decision, calling the contraception mandate “an egregious and blatant violation” of religious freedoms guaranteed under the First Amendment. “No American should be forced to surrender their religious freedom or abandon their deeply held religious beliefs,” he said in a statement.

According to a POLITCO story issued this morning,

The Obama administration argues that employer health plans need to include contraception to ensure that women and their babies are healthy. Opponents of the policy — notably, the Catholic bishops — say that the administration is requiring some businesses to forgo religious beliefs against the use of contraception. The case brought by the Little Sisters … falls into an unexpected loophole in the Affordable Care Act (ACA) contraception coverage.

Earlier this year, the Obama administration tried through regulations to accommodate religious-affiliated nonprofits over contraception. It allowed groups like the Little Sisters to tell their insurance company or third-party administrator that they objected on religious grounds. The insurer or administrator would then have to provide contraceptives to the employees at no charge.

The premise was that an insurer or administrator would not have the same objection to providing such products. But the catch here is that the Little Sisters’ administrator — the Christian Brothers Employee Benefits Trust — is also run by a religious order.

The Christian Brothers, who joined the Little Sisters on the lawsuit, qualify as a church under employment law. And under that law, if they don’t want to provide contraception, the federal government has no recourse to force them to do so.

If the ACA remains as currently written, religious organizations, religious institutions, or employers who have religious objections are forced to provide contraception coverage as well as all FDA-approved emergency contraception.

According to the FDA website, FDA-approved emergency contraceptives include Plan B, Plan B One-Step and Next Choice. Many religious organizations would also recognize these as abortifacients. Mandating religious organizations, religious institutions and employers to provide this coverage simply violates their conscience rights.

The question remains: What is the alternative when the insurance company, who under the ACA is required to provide contraception coverage, has the same objections and will also have their conscience rights violated?

The answer to this and the end of this story is far from complete. Over the coming months this will be an issue at the forefront as more challenges, more delays and more decisions await.

Heather Weininger
Wisconsin Right to Life Legislative / PAC Director

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