The first Supreme Court stay of the HHS contraception mandate, issued by Justice Sonia Sotomayor on New Years Eve, was a pause in the proceedings in order for the court to consider whether the Little Sisters of the Poor would suffer significant damage if forced to comply while their challenge is on appeal. Today, the whole court issued a stay of more significance — one that extends to another group suing to block enforcement:
The Supreme Court said on Friday that, while litigation continues, the federal government may not enforce a part of President Barack Obama’s healthcare law that requires employers to provide insurance covering contraception against an order of nuns and one other Roman Catholic Church-affiliated group.
The court said, however, that the groups in question must first notify the Department of Health and Human Services in writing that they object to the so-called contraception mandate.
The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court’s views on the merits.
However, in order for a court to issue a stay, there generally has to be two measures met. First, the applicant has to have a real chance at winning the argument, and there has to be demonstrable and significant damage resulting from a denial of a stay. If the court agrees that the Little Sisters and the Christian Brothers (the other plaintiff) both have a real chance of prevailing on the merits and will suffer damage without injunctive relief, then it seems that the Supreme Court is at least open to their case.
Gabriel Malor, as usual, warns to keep things in perspective:
The accommodation is what is supposed to allow the mandate to pass muster in regard to religious freedom, though. If that fails, the mandate will have a difficult time standing, too. And keep in mind that for technical reasons related to the insurance used by the Little Sisters, theirs isn’t the strongest legal challenge eventually coming to the Supreme Court.
Update: Ed Whelan notes that this order was apparently unanimous:
Without recorded dissent, the Supreme Court has enjoined the federal government from enforcing the HHS mandate against the Little Sisters of the Poor and their co-plaintiffs during the pendency of their Tenth Circuit appeal. More precisely, injunctive relief is available to each plaintiff if it informs HHS in writing that it is a nonprofit organization that holds itself out as religious and that it has religious objections to providing coverage for contraceptive services. …
Speaking of which, here’s Gabriel again:
A lot of thought went into it, and perhaps (although not necessarily) debate, too. Interesting. Meanwhile, the Becket Fund is pretty happy with the result. Here’s their whole statement:
Washington, D.C. – Today the Little Sisters of the Poor received an injunction from the Supreme Court protecting them from the controversial HHS mandate while their case is before the Tenth Circuit Court of Appeals. The injunction means that the Little Sisters will not be forced to sign and deliver the controversial government forms authorizing and instructing their benefits administrator to provide contraceptives, sterilization, and drugs and devices that may cause early abortions (see video). The Court’s order also provides protection to more than 400 other Catholic organizations that receive health benefits through the same Catholic benefits provider, Christian Brothers.
“We are delighted that the Supreme Court has issued this order protecting the Little Sisters,” said Mark Rienzi, Senior Counsel for the Becket Fund. “The government has lots of ways to deliver contraceptives to people–it doesn’t need to force nuns to participate.”
To receive protection, the Supreme Court said that the Little Sisters and other organizations that receive benefits through Christian Brothers must simply inform HHS of their religious identity and objections. The Court said that the Little Sisters did not have to sign or deliver the controversial government forms that authorize and direct their benefits administrator to provide the objectionable drugs and devices.
The order was issued by the entire Supreme Court. Justice Sonia Sotomayor, who is the Justice assigned for emergency applications from the Tenth Circuit Court of Appeals, had previously issued a temporary injunction to allow the court time to consider the Little Sisters’ emergency appeal, filed on New Years’ Eve.
Prior to the order, injunctions had been awarded in 18 of the 19 similar cases in which relief had been requested.
“Virtually every other party who asked for protection from the mandate has been given it,” said Rienzi. “It made no sense for the Little Sisters to be singled out for fines and punishment before they could even finish their suit.”
The Little Sisters are joined in the lawsuit by religious health benefit providers, Christian Brothers Services, Christian Brothers Employee Benefits Trust. The lawsuit is a class action on behalf of all the non-exempt organizations that receive benefits through Christian Brothers. The Plaintiffs are also represented by Locke Lord, a national law firm, and by Kevin Walsh, a law professor at the University of Richmond.
To date, there are currently 91 lawsuits challenging the unconstitutional HHS mandate. The Becket Fund represents: Hobby Lobby, Little Sisters of the Poor, GuideStone, Wheaton College, East Texas Baptist University, Houston Baptist University, Colorado Christian University, the Eternal Word Television Network, Ave Maria University, and Belmont Abbey College.
The Becket Fund for Religious Liberty is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions—from Anglicans to Zoroastrians. For 19 years its attorneys have been recognized as experts in the field of church-state law. The Becket Fund recently won a 9-0 Supreme Court victory in Hosanna-Tabor v. EEOC, which The Wall Street Journal called one of “the most important religious liberty cases in a half century.”
Update: Gabriel posts a rebuttal at AoSHQ to those who somehow considered this a defeat for the Little Sisters. UCI professor Rich Hasen argued that the requirement to object in writing to HHS to get coverage under the stay triggers the birth control coverage, but that’s nonsense:
First, the coverage the Little Sisters object to is not triggered by giving HHS notification, as contemplated by the Supreme Court order. Rather, it is triggered “[i]f a third party administrator receives a copy of the self-certification,” i.e., the accommodation form that organizations objecting to the contraception mandate have to fill out. You can check me on this, if you like (PDF). The Supreme Court order specifically says that the Little Sisters notification to HHS does not have to use the accommodation form or provide it to their third-party administrator. Thus, providing an alternative notification to HHS does not trigger the objectionable contraceptive coverage.
Also, contrary to Hasen, the insurance companies aren’t even in this. The Little Sisters use a self-insured health plan, which has a third-party administrator, again as specifically stated in the Supreme Court order, not an insured group health plan. The different types of plans have different requirements.
Read it all.