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Originally published Friday, January 3, 2014 at 4:45 PM

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White House: Nuns can ‘opt out’ of birth-control responsibility

The Justice Department said the contraceptive-coverage requirements did not impose a “substantial burden” on the nuns’ right to practice their religion because they could “opt out” of the obligation by certifying that they had religious objections to such coverage.


The New York Times

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WASHINGTON — The Obama administration urged the Supreme Court on Friday to reject a lawsuit filed by the Little Sisters of the Poor, an order of Roman Catholic nuns challenging requirements for many employers to provide health-insurance coverage of birth control or face penalties under the new health-care law.

The Justice Department said the requirements did not impose a “substantial burden” on the nuns’ right to practice their religion because they could “opt out” of the obligation by certifying they had religious objections to such coverage.

The Little Sisters “need only self-certify that they are nonprofit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services,” the administration said in a brief filed with the Supreme Court by the solicitor general, Donald B. Verrilli Jr.

In addition, he said, the nuns would need to send a copy of the certification to an entity that administers their health plan, Christian Brothers Services.

Under the health-care law, most health-insurance plans have to cover all FDA-approved contraceptives as preventive care for women, free of cost to the patient. Churches and other houses of worship are exempt from the birth-control requirement, but affiliated institutions that serve the public are not. That includes charitable organizations, universities and hospitals.

In response to an outcry, the government came up with a compromise that requires insurers or health-plan administrators to provide birth-control coverage but allows the religious group to distance itself from that action. The exemption is triggered when the religious group signs a form for the insurer saying that it objects to the coverage.

The insurer can then go forward with the coverage.

Hours before the contraceptive-coverage requirements were to take effect, Supreme Court Justice Sonia Sotomayor late Tuesday temporarily blocked the Obama administration from enforcing them with respect to the nuns and certain other religious groups. The nuns operate nursing homes for poor people in the United States and around the world.

In its filing with the court Friday, the administration said the nuns “have no legal basis to challenge the self-certification requirement or to complain that it involves them in the process of providing contraceptive coverage.”

If the nuns file the certification required by federal rules, the nuns, their self-insured health plan and the entity that administers the health plan will not be required to cover birth control, the administration said.

Verrilli said the nuns were not entitled to an injunction further blocking the contraceptive coverage rules.

The nuns disagreed.

“The government demands that the Little Sisters of the Poor sign a permission slip for abortion drugs and contraceptives, or pay millions in fines,” said Mark Rienzi, a lawyer at the Becket Fund for Religious Liberty, who represented the nuns in the lawsuit. “The sisters believe that doing that violates their faith.”

Eric Rassbach, a deputy general counsel of the Becket Fund, said the relief offered by the government was not a complete exemption. By signing the form, he said, the nuns would be “designating someone else to provide the contraceptive drugs and devices” to which they object.

“It makes them complicit,” Rassbach said. The nuns do not want to sign the form because it would “authorize and designate” the administrators of their health plan, including Express Scripts, to provide contraceptives, he added.

The nuns unsuccessfully challenged the Obama administration rules in U.S. District Court in Denver, where they operate a nursing home. They are now seeking an injunction to block enforcement of the rules while they pursue their case in the U.S. Court of Appeals for the 10th Circuit, in Denver. The circuit court declined this week to grant such an injunction.

The Little Sisters’ lawsuit is one of many challenging the contraceptive-coverage requirement.

Material from The Associated Press is included in this report.



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