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Counsel for a group of nuns that oppose mandatory coverage for birth control expressed confidence in their case against government, citing prior rulings and the nature of their healthcare plan.

Religious institutions continue to challenge provisions of President Barack Obama’s signature policy, the Affordable Care Act, and on March 23, oral arguments for and against participation in a portion of the law that requires health insurance plans include contraceptives will begin in the nation’s highest court.

After an unfavorable ruling by the U.S. Court of Appeals for the Tenth Circuit, the Little Sisters of the Poor will join a consolidated case in the Supreme Court seeking relief from any participation in the mandate, even if they are not directly providing the contraception coverage.

The Little Sisters are an order of Catholic nuns who care for the elderly poor and contend that filing the necessary paperwork to apply for a religious exemption implicates them as an active party to providing birth control, even if the government is ultimately paying for the contraceptives.

Daniel Blomberg, legal counsel with the Becket Fund for Religious Liberty, which is representing the nuns, said although you can never say with certainty what will happen once a case goes to trial, he sees positive indicators. “Obviously, we can’t predict what the court will do,” he says, but the government’s case is not strong.

In 2013 the Little Sisters were awarded injunctive relief of the mandate after seeking an emergency appeal by the Supreme Court. Blomberg says that winning that appeal is a good sign and notes it could foreshadow success when the case is heard. He also says the Supreme Court has already favorably ruled in other religious exemption cases, and the type of church-based healthcare plan offered by the Little Sisters provides additional protections from the mandate, as well.

They’re being forced to “choose between violating their faith and crushing fines,” he says. “The government never needed their help [providing contraceptives] before, and doesn’t need it now.” 

According to a Brief for the Respondents hosted on SCOTUSblog and filed by Solicitor General of the United States Donald B. Verrilli, Jr. in September, the lower court’s assertion that the Little Sisters cannot interfere with the government’s requirement to provide coverage as prescribed by the law must be acknowledged in the pending case.

“The court explained that although petitioners ‘sincerely oppose contraception, their religious objection cannot hamstring government efforts to ensure that plan participants and beneficiaries receive the coverage to which they are entitled’ under federal law,” it reads.

Additionally, information from the Becket Fund claims the Little Sisters were misled by the Administration with respect to religious protections. Blomberg said the Little Sisters were unaware that adding health insurance benefits would lead them to fall under the birth control mandate. Some entities that did not make substantial alterations to their healthcare plan after the Affordable Care Act passed were “grandfathered” out of the mandate, but since the Little Sisters offered additional health benefits they fell outside the scope of those exemptions, Blomberg says.

“The bottom line is, all Little Sisters of the Poor want to do is go back to serving the poor,” and not spend time on the distracting litigation, Blomberg says.

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