Late on New Year’s Eve, Justice Sonia Sotomayor granted a small number of religiously affiliated groups a temporary injunction from a provision in the Affordable Care Act that allows them not to cover contraception in their health care plans if they fill out a form that states that they want an exemption from the law for religious reasons. Go ahead and read that sentence again. These Catholic nonprofits that wanted an exemption from covering their employees’ contraception needs—and got an exemption from covering their employees’ contraception needs—are now fighting the provision (that exempts them from covering their employees’ contraception needs) simply because they don’t want to have to fill out a form that states that they are exempt. Why? Because their employees need that form in order to get birth control directly from their insurers (which they need to do because their employers—these Catholic non-profits—are exempt, as they want to be).
That’s right: These groups are arguing that filling out a form is a violation of their religious freedom and that “religious freedom” means that you should have control over your employee’s health care decisions even when they happen outside of the insurance coverage you directly provide for them. Even the lawyer for one of the groups, the Little Sisters of the Poor Home for the Aged, admits that this lawsuit is about trying to weasel out of nothing more onerous than signing a piece of paper. “Without an emergency injunction,” Mark Rienzi told the Associated Press, “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.” And a spokeswoman for the Becket Fund for Religious Liberty, lead counsel for the Little Sisters, said, “The government has lots of ways to deliver contraceptives to people. It doesn’t need to force the nuns to participate.” The problem is that the government agrees and has set up a system so that the nuns can opt out. The nuns refuse to opt out, however, because opting out on paper will allow their employees to get that contraception coverage.
It’s important not to read too much in Sotomayor’s willingness to grant these groups a temporary injunction from signing a piece of paper. The injunction is only to allow the status quo to continue until the case gets heard in court. That won’t be great for the employees of these groups, who will have to continue without employer-provided contraception coverage and will also be unable to get coverage directly from their insurance companies, but it doesn’t necessarily mean that the court is siding with the Sisters on this one.