Understanding the Little Sisters’ Response to the Court

The Supreme Court asked the government and the religious institutions involved in the recent HHS Mandate litigation (I’ll collectively address the institutions as the Little Sisters) to address whether:

“contraceptive coverage may be obtained by [the Little Sisters’] employees through [the Little Sisters’] insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees”

Yesterday, the Little Sisters filed a Supplemental Brief saying “sure there is”! The brief is here.

The brief laid out three important points to guide the Court in choosing a potential solution:

  1. The brief made clear that the Little Sisters continue to religiously oppose contraception and abortion, even as they respond to the Court’s request to help the Court figure out a way that the government could deliver free contraception to their employees without their involvement.
  2. The brief set out what the Little Sisters mean by any provision of contraception and abortifacients that is TRULY INDEPENDENT of the Little Sisters and their plans. It has to have: a separate policy; separate enrollment process; a separate insurance card; a separate payment source; a separate set of communications offering the coverage to individuals, and “no one should be able to conclude that the [Little Sisters] are, in fact, complying with the Mandate.”
  3. The brief argues that because the government CAN provide free contraception under the new suggestions, it MUST, by reason of the legal requirement of using means “least restrictive” of religious freedom.

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The Little Sisters’ lawyers suggested 5 ways these requirements could be met :

  1. A new regulation from the government requiring insurance companies – to the extent they contract with an eligible organization that does not include some or all contraceptive coverage in its plan – to make available to plan beneficiaries a separate plan providing the contraceptive coverage. They must also separately contact beneficiaries to inform them of the availability of the plan and how to enroll. In this way, the government would not be requiring the Little Sisters to name their insurer, nor to authorize the government to “hijack” their plans by attaching contraception to them.  The health care exchanges could also provide insurance policies including free contraception (the Brief shows how such a scheme is allowed under both federal and state laws).
  2. The government could directly inform the Little Sisters’ employees about the availability of the coverage.
  3. Health care providers could be tasked with providing information about insurance coverage for contraception to any individual who comes to the provider without contraception coverage.
  4. The government could contract with one or more commercial insurance companies to provide coverage to all of the Little Sisters’ employees.
  5. The government could use an existing state program – e.g. Title X – to make free contraceptives available to any woman with a policy that does not cover them.

The brief concludes by showing that religious institutions with “self-insured” plans can also receive contraceptive coverage from the insurance companies providing contraception-only policies to religious institutions that use insurance companies.

Stay tuned for my analysis of the governments’ arguments!

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