By Kendall Karr, SIECUS Intern

On Friday, January 24, 2014, the Supreme Court released an order in the pending case of The Little Sisters of the Poor v. Sebelius. The order followed an injunction put in place by Justice Sotomayor on New Year’s Eve in which the Little Sisters were granted temporary reprieve from complying with the Affordable Care Act’s (ACA) contraceptive mandate while their case is pending in the United States Court of Appeals for the Tenth Circuit. This most recent order allows the Little Sisters to continue avoiding, for the time being, fines for noncompliance with the mandate.[1]

The contraceptive mandate requires insurance plans, including those sponsored by an employer, to provide all FDA-approved contraceptive methods, without copays or other cost-sharing. However, according to the government, the Christian Brothers Employee Benefit Trust, which provides health benefits for the Little Sisters of the Poor, would not be forced to include this coverage because another federal law exempts “church plans.”[2]

The Little Sisters of the Poor homes in Denver and Baltimore, part of an international organization of Roman Catholic nuns serving the elderly poor, have employee benefit plans that would allow them to be exempt from the ACA contraceptive mandate if they were to file an Employee Benefits Security Administration Form 700 and provide copies to their health plan administrator.[3]

Nonetheless, the Little Sisters are seeking formal legal shelter from the contraceptive mandate, arguing that filing Form 700 would authorize a third party to provide contraceptive coverage, thus implicating them in a system that provides contraceptives and goes against their faith. So even though filing the form indicates that they oppose providing coverage for contraceptive services and exempts them from providing the services, they believe just preparing and signing the form makes them an instrument in aplan that violates their faith. The government’s explanation for Form 700 is that it clearly separates the religious group from the ultimate access to birth control by eliminating the religious group’s obligation to provide contraceptive services and ends the religious organizations involvement in that aspect of the ACA program.[4]

The Supreme Court order did not put the entire contraceptive mandate on hold, but only delayed the obligation to sign Form 700 until the mandate could be challenged through the lower courts. The order instructed the Little Sisters to “inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services.”[5] This would prohibit the government from enforcing the challenged provisions of the ACA until the final disposition of the appeal by the Tenth Circuit. The requirement to write to HHS was a procedure the Court itself invented, which is outside the rules established by the government.

The Supreme Court made sure to explicitly state that this order is based on the specific circumstances of this case and is not an expression of the Court’s views on the merits of the overall appeal. According to Cecile Richards, President of Planned Parenthood Federation of America,  “This case raises a very narrow and specific question about the administrative mechanism that religious groups use to claim their exemption. This is a case about paperwork, not religious liberty.”[6]

The Little Sisters case is one of dozens of lawsuits across the country regarding the contraceptive mandate. The Little Sisters case does not deal with for-profit organizations that are owned by religious individuals whose faith opposes the contraceptive services required by the ACA. The Supreme Court will review two cases together regarding the issue of profit-making businesses in March.