On New Year’s Eve 2013, Supreme Court Justice Sonia Sotomayor—who acts as the “Circuit Justice” to the U.S. Court of Appeals for the 10th Circuit —temporarily enjoined the imposition of a federal mandate that certain religious employers either (1) provide insurance coverage including birth control to their employees; or (2) sign and execute a form allowing a third party to provide that coverage to their employees.  After weeks of speculation as to whether the injunction would soon be lifted, the full Court issued its ruling on January 24, 2013, holding that the injunction would continue during the pendency of a federal lawsuit in the District Court for the District of Colorado.

Specifically, the Colorado case involves the Little Sisters of the Poor Home for the Aged (the “Little Sisters”), a group of nuns who are dedicated to providing care for the elderly, particularly those suffering from poverty.  They contend that they scrupulously follow Catholic doctrines in administering their non-profit organization.  In September 2013, they, along with other religious employers, filed a federal lawsuit in the U.S. District Court for the District of Colorado.  The lawsuit names Secretary of Health and Human Services Kathleen Sebelius, as well as other government officials, as defendants.  In their complaint, the Little Sisters ask the district court to invalidate the federal mandate contained in the Patient Protection and Affordable Care Act (ACA) that employers provide birth control to their employees, which went into effect for many employers on January 1, 2014.  See 42 U. S. C. § 300gg-13(a)(4).

Notably, regulations subsequent to the ACA’s passage require that religious institutions—even those not considered houses of worship, like the Little Sisters—need not provide birth control coverage to their employees, so long as they sign the Employee Benefits Security Administation (EBSA) Form 700, a form authorizing a third party to provide that coverage.  See 45 C.F.R. § 147.131(b)-(c).  But the Little Sisters allege that even executing the EBSA Form 700 violates the Religious Freedom Restoration Act (RFRA).  The RFRA prevents the federal government from imposing a “substantial burden” on an individual’s religion without providing a compelling interest pursued through the narrowest means.  See 42 U.S.C. § 2000bb.  Essentially, say the Little Sisters, executing the form “deputizes” another party to commit moral sins—since birth control generally contravenes official Catholic doctrines—on their behalf, and thus violates RFRA.

In October 2013, the Littler Sisters asked the district court for a preliminary injunction while the litigation continued, which the district court denied on December 27, 2013.  Hoping to appeal the denial of the preliminary injunction, the Little Sisters asked the Tenth Circuit to enjoin the birth control mandate until the Tenth Circuit could consider their appeal.  On December 31, 2013, that motion was denied by the Tenth Circuit.

As a last resort, the Little Sisters asked Justice Sotomayor for an injunction before the mandate became effective at midnight on New Year’s Eve.   Somewhat surprisingly—since Justice Sotomayor was appointed by President Obama and voted to uphold the ACA in 2012—she issued the injunction, and ordered further briefing regarding the propriety of enjoining the mandate while the case proceeded in the district court.

In its brief to the Court, the federal government argued that EBSA Form 700 is a formality—requiring only the stroke of a pen—that is meant to accommodate religious institutions.  The accommodation for religious practices, it noted, should not itself be considered a burden on religion.  In turn, the Little Sisters reiterated their argument that compelling them to authorize another party to provide birth control is a substantial burden on their religious beliefs.  And they contended that a future victory in their still-pending lawsuit that restores their religious freedom down the road will not fix the irreparable harm they would face now, if forced to comply with the law in the meantime. 

Once the briefing was completed on January 3, 2014, the Court sat strangely silent for three weeks.  Finally, on January 24, 2014, the full Court issued its ruling continuing the injunction during the pendency of the Little Sisters’ federal lawsuit.  Moreover, other religious employers—although not involved in the suit—may seek the same relief.  Instead of signing the EBSA Form 700, the Supreme Court instead held that such employers need only inform the secretary of Health and Human Services, in writing, that they are religious employers who object to providing birth control on religious grounds.  The Court was quick to note, however, that the injunction “should not be construed as an expression of the Court’s views on the merits.”  In other words, the Court stayed clear of giving direction to lower courts, much less offering its own opinions, on the underlying RFRA issue involved in the case.

Note that although this case involves both the ACA and RFRA, it is analytically distinct from other cases involving for-profit institutions like Hobby Lobby Inc. that are already before the Supreme Court.  In those cases, the federal government has not offered employers the opportunity to sign an authorization form to escape providing employees with insurance that covers birth control, nor do all parties agree that RFRA even applies to for-profit employers.  We addressed the issues in those cases here.