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Odd Order in Nuns' Even More Odd Contraceptive Mandate Case

By William Peacock, Esq. on January 24, 2014 | Last updated on March 21, 2019

This odd case just became even more odd.

Little Sisters of the Poor is a traditional order of Catholic nuns. Obviously, as a Catholic organization, they don't want to provide contraceptive care under the Affordable Care Act's so-called contraceptive mandate.

Fair enough. There's a form for that, which would exempt them from Obamacare's requirement.

This is where the case gets a little weird. The nuns are arguing that simply filling out the religious exemption form would violate their religion. Participation in the system clears the way for government-sponsored abortion, they argue.

Sotomayor Intervention

Justice Sonia Sotomayor, who hears requests for injunctions from the Tenth Circuit, issued a temporary injunction barring enforcement [PDF] of both the Little Sisters' obligations under the mandate as well as the form-filing duty, though she noted that the request would be passed along to the Court as a whole.

Sotomayor issued her temporary injunction on December 31. The Court finally got around to addressing the issue today (January 24).

An Odd Order

Hilariously enough, Lyle Denniston of SCOTUSblog was just wondering aloud this morning what happened with the case.

Asked and answered, apparently. The Court released an order late Friday afternoon, and it's pretty unusual.

Instead of requiring the nuns to fill out the form, the Court is only requiring them to notify the Secretary of Heath and Human Services in writing that "they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services."

In other words: Send a written letter, rather than using the prescribed form, and the government is enjoined from enforcing the relevant portions of the Patient Protection and Affordable Care Act until after the Tenth Circuit decides the case.

As Denniston notes, the letter idea has been created out of thin air. It's a creative solution not found in the statute. But, does writing a letter constitute participation in the system?

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