A group of nuns who provide care to aging people don't have any reason to appeal against the birth control mandate because they don't have to provide contraception, anyway, the u.S. government argued on Friday.
It's an early skirmish in a year expected to be full of battles over the so-called contraceptive mandate in the Obamacare law.
The administration says the group is already exempt from the law, because their insurance is provided by Christian Brothers Services. As a church organization, it's excused from the law's requirements.
"In this case, however, as both of the lower courts again recognized, the third-party administrator of applicants' church plan says it will not provide contraceptive coverage," the Department of Justice wrote in its response.
As of New Year's Day, all new insurance plans, including those provided by employers, must provide free birth control as part of a list of essential benefits, including vaccinations and cancer screenings.
When some religious groups objected, the Obama administration provided exemptions.
The Denver chapter of the Little Sisters of the Poor says it cannot even sign a waiver asking for one. Supreme Court justice Sandra Sotomayor, who has responsibility for the 10th Circuit Court of Appeals where the group filed its latest appeal, granted a last-minute injunction on New Year's Eve.
She gave the administration until 10 this morning to respond.
"The question here is in order to receive that exemption, they have to fill out a form," says Ian Millhiser, senior constitutional policy analyst at the Center For American Progress. "That form announces to the government that they have a religious exemption. Employees can use that form to get (birth control) from their insurer." The Little Sisters say that the act of filling out the form makes them complicit to birth control, which they believe is sinful.
But no one who works for Little Sisters can get birth control under their plan, anyway, the DoJ argues. "Given these circumstances, applicants' concern that they are 'authorizing others' to provide coverage lacks any foundation in the facts or the law."
The Becket Fund for Religious Liberty represents the Little Sisters. It's the same law firm helping Hobby Lobby, other for-profit businesses and some colleges and universities that are also challenging the contraceptive mandate.
The Little Sisters case is separate from these cases, in which the owners object to birth control and argue they shouldn't have to provide it. The Supreme Court will hear arguments on Hobby Lobby's case in March. More than 80 suits have been filed against the mandate.
Right now, the Supreme Court's involvement in the Little Sisters case is minimal. Sotomayor can send it back to the federal courts or she can ask her colleagues to consider it as a full court.
Brigitte Amiri of the American Civil Liberties Union, which supports the mandate, says she is not concerned by Sotomayor's action.
"Justice Sotomayor wants to make a thoughtful decision," she told NBC News. "I think this temporary holding pattern isn't a cause for concern at this point. It allows for all briefs to be filled out."
"It was like, 'let's take a deep breath'," agreed Judy Waxman of the National Women's Law Center.
Archbishop Joseph Kurtz of Louisville, president of the U.S. Conference of Catholic Bishops, notes that the White House has extended more than a few deadlines for people trying to buy health insurance on the troubled exchanges. "I understand that legal issues in these cases will ultimately be settled by the Supreme Court," Kurtz wrote in a letter to Obama.
"In the meantime, however, many religious employers have not obtained the temporary relief they need in time to avoid being subjected to the HHS mandate beginning January 1. I urge you, therefore, to consider offering temporary relief from this mandate, as you have for so many other individuals and groups facing other requirements under the ACA."