The Justice Department will answer a challenge Friday morning to a controversial provision in the new health care law. It requires most employers that offer health insurance to include birth control at no cost.
A group of Catholic nuns has objected to that, and this week they won a temporary reprieve from Supreme Court Justice Sonia Sotomayor. It's an unusual test case, but it won't be the last one.
The health care law's requirement that workplace insurance policies include free birth control has been controversial from the get-go. The law grants an exemption for churches and other exclusively religious organizations but not for church-affiliated charities. That includes a group of nuns behind a nursing home in Denver known as the Little Sisters of the Poor.
"They take care of poor people who are very old, and they take care of them with love and dignity until they die. And they do this for people of every race and religion," says attorney Mark Rienzi, who works for the Becket Fund for Religious Liberty, which represents the nuns and other critics of the law.
The Obama administration tried to compromise, saying charities can sign a statement that they object to birth control, and leave it to third-party insurers to pick up the cost.
But Rienzi argues that's not good enough. "To the nuns, their view is they're just not allowed to sign what are essentially permission slips for these kinds of products. They just need to be out of the system. But the government won't let them out and threatens massive fines against them if they don't sign the forms."
The White House says it's confident that it has struck an appropriate balance, one that provides working women with free access to birth control without forcing religious charities to pay for it.
Marcia Greenberger of the National Women's Law Center argues that the charities are trying to impose their own religious views on employees who may not share them. "Not only are they asking for the authority not to provide it themselves, but we want to veto the ability of a commercial insurer to pick up the tab, too, for these women. So that is a very extreme right that has never been recognized before."
In many cases, lower courts have granted religious charities temporary relief from the birth-control mandate while their cases are being heard. But this week, an appeals court in Colorado opted not to give that kind of break to the Little Sisters of the Poor. That's because their insurance provider is a self-insured church plan, exempt from government regulation.
In other words, Greenberger says, neither the nuns nor their insurance carrier will actually have to provide any birth control. "In truth, Little Sisters, because it is part of a church plan, is going to end up, no matter what, without its employees having contraceptive coverage."
Nevertheless, on New Year's Eve, Justice Sotomayor granted the nuns a temporary injunction — at least long enough for the Justice Department to file its response.
Whatever happens to the Little Sisters of the Poor, controversy over the birth control mandate will continue. Later this year, the Supreme Court will hear arguments from for-profit companies such as Hobby Lobby that object to covering birth control. For now, these for-profit employers do have to cover the cost.
But the Becket Fund's Rienzi insists that there are alternatives. "We have a big, powerful federal government that has lots of ways to get contraceptives to people if it really thinks that's urgently important," he says.
The Hobby Lobby case is expected to be argued in March.
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