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January 1st, 2014
04:31 PM ET

Fighting Obamacare's 'contraception mandate'

(CNN) – The U.S. Supreme Court has temporarily exempted two Catholic Church-affiliated nonprofits from requirements to provide contraceptive coverage to its employees under the Affordable Care Act.

Justice Sonia Sotomayor issued a brief order late Tuesday, hours before the controversial Obama administration mandates were set to go into effect.

The Little Sisters of the Poor – a charity congregation of Roman Catholic women in Denver – and the Illinois-based Christian Brothers Services had filed a lawsuit objecting to the contraception mandate, saying it violated their religious and moral beliefs. Some religious-affiliated groups were required to comply with contraception coverage or face hefty fines.

When they heard the news, the nuns of the Little Sisters of the Poor were "very relieved," said Daniel Blomberg, legal counsel for the Becket Fund for Religious Liberty, the group that filed the suit on behalf of the Little Sisters of the Poor.

"Without Justice Sotomayor issuing the injunction, they would be facing fines today that add up to millions of dollars a year," said Blomberg.

The broad argument from the Obama administration is that the Affordable Health Care Act carved out an accommodation for religious organizations. Churches, for example, do not have to provide contraception coverage. Religiously-affiliated non-profits and organizations do not have to take out health insurance that provides coverage they oppose on religious grounds, but the insurance company does have to provide such coverage.

"What the Little Sisters are saying here is you are forcing us to participate, you are forcing us to sign a permission slip that provides these drugs," said Blomberg.

"We defer to the Department of Justice on litigation matters, but remain confident that our final rules strike the balance of providing women with free contraceptive coverage while preventing non-profit religious organizations with religious objections to contraceptive coverage from having to contract, arrange, pay, or refer for such coverage," a White House official on Wednesday said in reacting to the high court order.

"Ninety percent of courts to look at this are saying, 'No, they haven't struck the right balance. They've struck a balance that violates the law,'" said Blomberg.

Nearly all women who have sex use birth control, or have used it at some point, according to a recent poll from the Centers of Disease Control. Identified as a fundamental health care need for the majority of women, why would a religious organization not even allow an insurance company to provide contraception?

"It's not that they're not allowing it, they're just saying, 'Please don't make us trigger this, please don't make us participate,'" said Blomberg.

Blomberg also represents the Hobby Lobby, East Texas Baptist University, and the Colorado Christian University. Some say employees of these institutions may be very religious, but also use birth control, and exempting such organizations from providing contraceptive coverage is something of a punishment.

Employees did not have that expectation before, said Blomberg, and moreover, when people come to work for religious organizations, they understand that the people that head the organization "are not going to do things to violate their faith."

The U.S. District Court of Appeals denied Blomberg's request for an injunction, saying Tuesday that the Little Sisters of the Poor, "may opt out from the mandate by completing a self-certification form ... [and] because the trust is a self-insured 'church plan'... would not be subject to fines or penalties."

The Little Sisters get insurance through Christian Brother Services insurance, which does not provide contraceptive coverage. Which means no matter what form the Little Sisters sign, contraceptive coverage will not be provided.

"The Little Sisters' objection isn't just to these drugs potentially flowing, it's to having to participate at all, having to be a part of the system that the government says only exists to provide contraception," said Blomberg.

The Obama administration will present arguments against the injunction on Friday. If they lose, will these groups comply with the law?

"They can either continue to provide ministry in the way they always have. But if they do that, then they have to pay fines, millions of dollars in fines every year," said Blomberg. "That's a decision they have to make, and it's an extremely difficult one."

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