SCOTUS extends stay on Little Sisters case

posted at 6:01 pm on January 24, 2014 by Ed Morrissey

The first Supreme Court stay of the HHS contraception mandate, issued by Justice Sonia Sotomayor on New Years Eve, was a pause in the proceedings in order for the court to consider whether the Little Sisters of the Poor would suffer significant damage if forced to comply while their challenge is on appeal. Today, the whole court issued a stay of more significance — one that extends to another group suing to block enforcement:

The Supreme Court said on Friday that, while litigation continues, the federal government may not enforce a part of President Barack Obama’s healthcare law that requires employers to provide insurance covering contraception against an order of nuns and one other Roman Catholic Church-affiliated group.

The court said, however, that the groups in question must first notify the Department of Health and Human Services in writing that they object to the so-called contraception mandate.

The Washington Post has the full order, which is brief enough. Note the caveat:

The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court’s views on the merits.

However, in order for a court to issue a stay, there generally has to be two measures met. First, the applicant has to have a real chance at winning the argument, and there has to be demonstrable and significant damage resulting from a denial of a stay. If the court agrees that the Little Sisters and the Christian Brothers (the other plaintiff) both have a real chance of prevailing on the merits and will suffer damage without injunctive relief, then it seems that the Supreme Court is at least open to their case.

Gabriel Malor, as usual, warns to keep things in perspective:

The accommodation is what is supposed to allow the mandate to pass muster in regard to religious freedom, though. If that fails, the mandate will have a difficult time standing, too. And keep in mind that for technical reasons related to the insurance used by the Little Sisters, theirs isn’t the strongest legal challenge eventually coming to the Supreme Court.

Update: Ed Whelan notes that this order was apparently unanimous:

Without recorded dissent, the Supreme Court has enjoined the federal government from enforcing the HHS mandate against the Little Sisters of the Poor and their co-plaintiffs during the pendency of their Tenth Circuit appeal. More precisely, injunctive relief is available to each plaintiff if it informs HHS in writing that it is a nonprofit organization that holds itself out as religious and that it has religious objections to providing coverage for contraceptive services. …

It would seem that all nine justices are now part of that Catholic conspiracy that was the target of Jamie Stiehm’s idiotic anti-Catholic rant.

Speaking of which, here’s Gabriel again:

A lot of thought went into it, and perhaps (although not necessarily) debate, too. Interesting. Meanwhile, the Becket Fund is pretty happy with the result. Here’s their whole statement:

Washington, D.C. –  Today the Little Sisters of the Poor received an injunction from the Supreme Court protecting them from the controversial HHS mandate while their case is before the Tenth Circuit Court of Appeals.  The injunction means that the Little Sisters will not be forced to sign and deliver the controversial government forms authorizing and instructing their benefits administrator to provide contraceptives, sterilization, and drugs and devices that may cause early abortions (see video). The Court’s order also provides protection to more than 400 other Catholic organizations that receive health benefits through the same Catholic benefits provider, Christian Brothers.

“We are delighted that the Supreme Court has issued this order protecting the Little Sisters,” said Mark Rienzi, Senior Counsel for the Becket Fund.  “The government has lots of ways to deliver contraceptives to people–it doesn’t need to force nuns to participate.”

To receive protection, the Supreme Court said that the Little Sisters and other organizations that receive benefits through Christian Brothers must simply inform HHS of their religious identity and objections. The Court said that the Little Sisters did not have to sign or deliver the controversial government forms that authorize and direct their benefits administrator to provide the objectionable drugs and devices.

The order was issued by the entire Supreme Court. Justice Sonia Sotomayor, who is the Justice assigned for emergency applications from the Tenth Circuit Court of Appeals, had previously issued a temporary injunction to allow the court time to consider the Little Sisters’ emergency appeal, filed on New Years’ Eve.

Prior to the order, injunctions had been awarded in 18 of the 19 similar cases in which relief had been requested.

“Virtually every other party who asked for protection from the mandate has been given it,” said Rienzi.  “It made no sense for the Little Sisters to be singled out for fines and punishment before they could even finish their suit.”

The Little Sisters are joined in the lawsuit by religious health benefit providers, Christian Brothers Services, Christian Brothers Employee Benefits Trust.  The lawsuit is a class action on behalf of all the non-exempt organizations that receive benefits through Christian Brothers. The Plaintiffs are also represented by Locke Lord, a national law firm, and by Kevin Walsh, a law professor at the University of Richmond.

To date, there are currently 91 lawsuits challenging the unconstitutional HHS mandate. The Becket Fund represents: Hobby LobbyLittle Sisters of the PoorGuideStoneWheaton CollegeEast Texas Baptist UniversityHouston Baptist UniversityColorado Christian University, the Eternal Word Television NetworkAve Maria University, and Belmont Abbey College.

The Becket Fund for Religious Liberty is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions—from Anglicans to Zoroastrians. For 19 years its attorneys have been recognized as experts in the field of church-state law. The Becket Fund recently won a 9-0 Supreme Court victory in Hosanna-Tabor v. EEOC, which The Wall Street Journal called one of “the most important religious liberty cases in a half century.”

Update: Gabriel posts a rebuttal at AoSHQ to those who somehow considered this a defeat for the Little Sisters. UCI professor Rich Hasen argued that the requirement to object in writing to HHS to get coverage under the stay triggers the birth control coverage, but that’s nonsense:

First, the coverage the Little Sisters object to is not triggered by giving HHS notification, as contemplated by the Supreme Court order. Rather, it is triggered “[i]f a third party administrator receives a copy of the self-certification,” i.e., the accommodation form that organizations objecting to the contraception mandate have to fill out. You can check me on this, if you like (PDF). The Supreme Court order specifically says that the Little Sisters notification to HHS does not have to use the accommodation form or provide it to their third-party administrator. Thus, providing an alternative notification to HHS does not trigger the objectionable contraceptive coverage.

Also, contrary to Hasen, the insurance companies aren’t even in this. The Little Sisters use a self-insured health plan, which has a third-party administrator, again as specifically stated in the Supreme Court order, not an insured group health plan. The different types of plans have different requirements.

Read it all.

This post was promoted from GreenRoom to HotAir.com.
To see the comments on the original post, look here.


Related Posts:

Breaking on Hot Air

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

Awesome

txmomof6 on January 24, 2014 at 6:05 PM

Will SCOTUS be welcome in the New New York?

Mord on January 24, 2014 at 6:07 PM

The fact that any of this law still stands is a shame on the court to begin with.

whbates on January 24, 2014 at 6:08 PM

Freedom of Choice for the Little Sisters for now….

but sis keep voting Democrat ….

duh.

CWchangedhisNicagain on January 24, 2014 at 6:09 PM

In the land of freedom I really don’t get how FORCING any group or company to provide birth control is right or constitutional.

CWchangedhisNicagain on January 24, 2014 at 6:12 PM

CWchangedhisNcagain:

What land of freedom? We live in a land where lesbians can go around looking to bankrupt people with the full support of the state (see Oregon). Where you can be fired if you dare to speak your opinion that is not politically correct (Phil Robertson). Where having the wrong politics means the Federal government will audit you with a fine tooth comb numerous times, and publicize your membership rolls.

I’m not exactly sure how we could be referred to as the land of freedom anymore. The land of Fascism? Sure, that one is one I recognize.

Vanceone on January 24, 2014 at 6:17 PM

I’m sure there are many many jihady islamic “charities” in the USA, like that one being run by Hussein’s brother,
so am I to assume that them jihady islamic
” charities” are providing free birth control to their female employees ? Does the
Islamic
Retribution
Service
makes sure that they do ?

burrata on January 24, 2014 at 6:18 PM

“I’m not exactly sure how we could be referred to as the land of freedom anymore. The land of Fascism? Sure, that one is one I recognize.

Vanceone on January 24, 2014 at 6:17 PM”

Good to read your comments. Absolutely agree, but then I suppose you knew I would.

Bambi on January 24, 2014 at 6:27 PM

Sensible thing to do.

Now, come back with a 9-0 decision to tatoo to Obama’s, Holder’s, and Sebelius’s foreheads.

Ultimately, I hope they can recover their legal fees even if it comes from the taxpayers.

This was senseless litigation forced by the Obama administration.

BuckeyeSam on January 24, 2014 at 6:30 PM

The SOTU will be ‘glorious’.

Numbers down, “due to Fox and talk radio”

DOW down 500 points in 2 days

Arab Spring and all other foreign policies in shambles

Domestic policies…only culture wars

Unemployment high

Economy in tatters

Parties in the WH in full swing

Vacations and golf outings, same as always

This guy is totally intoxicated by obama’s crap
. I hope all the reporters like him suffocate, never to be heard from again…from what they consume.

Plus this

Noonan: The Sleepiness of a Hollow Legend
The State of the Union is a grand tradition—but only if people are listening.

Schadenfreude on January 24, 2014 at 6:34 PM

Will SCOTUS be welcome in the New New York?

Mord on January 24, 2014 at 6:07 PM

Maybe, but the Little Sisters of the Poor are clearly unwelcome in Cuomo’s state. The nuns, are among those Cuomo told to get the hell out of New York.

Happy Nomad on January 24, 2014 at 6:35 PM

Jamie Stiehm’s next editorial to demand the identification of all Catholics, and to demand they all wear crosses on their shoulders so everyone knows who they are.

NotCoach on January 24, 2014 at 6:38 PM

WASHINGTON — There have always been two, not entirely consistent, elements of Barack Obama’s powerful political appeal: his aspirational ambition and his personal sense of complexity and limits.

The aspirational — the promise of transcending our national divisions, resetting our relations with Russia and the Muslim world, slowing the rise of the oceans and healing the planet — is behind us. In a recent, remarkable interview with David Remnick of The New Yorker, Obama admits as much. Assuming the role of political commentator, the president talks of being overexposed “after six, seven years of me being on the national stage” and asks, “Is there somebody else out there who can give [people] that spark of inspiration or excitement?” Perhaps someone else is the change we have been waiting for.

But it is exactly this objectivity — this ability to emotionally distance himself from, well, himself — that impresses many journalists and commentators. Remnick calls it the “archetypal Obama habit of mind and politics, the calm, professorial immersion in complexity.” Like many before him, Remnick is impressed with Obama’s “philosophical ambivalences” and his ability to “nimbly” argue the other side of debates.

Obama seems impressed with these traits as well. In the course of the interview, he states: “I’m not a purist.”

And: “I’m pretty pragmatic.” And: “I’m not a particularly ideological person.” And: “I do think one of my strengths is temperament. I am comfortable with complexity.” On marijuana legalization, Obama convincingly argues for every possible side of the issue. On parenting, he favors both open-mindedness and structure. On federalism, he sees virtues and drawbacks. On pro football, he is a big fan but would not allow his son to play.

pajama-obama is about as complex as a 2-years old.

Schadenfreude on January 24, 2014 at 6:38 PM

Will the malicious pajama-preezie belittle the SCOTUS guests at the SOTU?

Schadenfreude on January 24, 2014 at 6:39 PM

Little Sisters of the Poor non-profit status to be examined by the IRS in 5,4,3,2,1…

Walter L. Newton on January 24, 2014 at 6:41 PM

My comment is gone. Why!

Bambi on January 24, 2014 at 6:42 PM

Good news for a Friday

22044 on January 24, 2014 at 6:42 PM

The accommodation is what is supposed to allow the mandate to pass muster in regard to religious freedom, though. If that fails, the mandate will have a difficult time standing, too. And keep in mind that for technical reasons related to the insurance used by the Little Sisters, theirs isn’t the strongest legal challenge eventually coming to the Supreme Court.

We’ll all be Muslims, thus exempt to the mandate.

Ezra Klein: That brings up two issues. The first is the individual mandate, which begins this year but is a much bigger penalty in year two, and then even bigger in year three. So one question here is how well that works.

RL: I have an interesting answer for that. I think the mandate is almost worthless because the word is getting around that they can’t really collect it. And by year three, it’s really a lot of money. I think there’ll be real pressure to just get rid of it. I don’t think you can force people to buy this insurance. If they don’t want it there’ll be a political groundswell to get rid of it. So in my mind the individual mandate is kind of irrelevant to this.

Schadenfreude on January 24, 2014 at 6:44 PM

So our favorite trolls have been active today on other threads.

Would they care to make a statement on this salute to religious freedom?

Or will they (as usual ) avoid threads where their silly progressive ideas are defeated and exposed for the fraud they are?

itsspideyman on January 24, 2014 at 6:50 PM

So our favorite trolls have been active today on other threads.

Would they care to make a statement on this salute to religious freedom?

Or will they (as usual ) avoid threads where their silly progressive ideas are defeated and exposed for the fraud they are?

itsspideyman on January 24, 2014 at 6:50 PM

The light makes the cockroaches run, doesn’t it.

22044 on January 24, 2014 at 6:58 PM

The so-called “accommodation” is nothing but a sham, and not even a particularly clever sham.

“Just sign this piece of paper, religious employer, and you won’t be providing your employees with birth control and abortion drugs. Oh no, your insurance company will be the one doing that, using completely independent funds. See, your insurance company (much like Emperor Obama) has its own secret stash of magic money, which it uses for such purposes. This money just mysteriously shows up in your insurance company’s bank account — has absolutely nothing to do with those premiums you pay — so your hands will be completely clean, religious employer (wink, wink).”

If a unanimous SCOTUS doesn’t hand the Obama administration its corrupt, incompetent azz on this one, then we are truly lost.

AZCoyote on January 24, 2014 at 7:10 PM

Good news for a Friday

22044 on January 24, 2014 at 6:42 PM

Watch it. Democrats want to outlaw “Good” and “Friday” to be expressed in the same sentence ever.

Happy Nomad on January 24, 2014 at 7:41 PM

i have to take a swipe at Huckaboo here. His shtick appeals to a Sat night FNC crowd, I guess…but that is a real narrowcast.

the single instance that any R should talk about contraception and the morning after pill is in the context of the freedom of religion

the left planted the bait a two years ago in the R primary…Rs are still falling into the trap. This is why we don’t get to have nice things..too many dumb Hucks in the R party

r keller on January 24, 2014 at 8:01 PM

Dr K said to night on the evil Fox Special Report that if the choice is Obama or the Little Sisters, take the Little Sisters.

Dingbat63 on January 24, 2014 at 8:02 PM

the problem is that there are intelligent conservatives who understand the damage that Huck does to the party.

Huck just goes his merry way…making life difficult for Rs…and getting paid a lot too. Sweet deal Huck

Conservatives can make a case for “women’s issues” if they avoid incendiary topics like “the psychology of women’s sexuality,” said Charles Krauthammer. “For god’s sake, why do you have to talk about that?” he said on Friday’s Special Report, referring to Mike Huckabee’s remarks earlier in the week about women’s “libido.”

Instead, Krauthammer encouraged Republicans to focus on issues where they would receive widespread approval, such as restrictions on late-term abortions or supporting of the Little Sisters of the Poor

r keller on January 24, 2014 at 8:28 PM

SCOTUS extends stay on Little Sisters case

What’s the problem, is there a broken communications satellite and torn up phone lines between Obama and the Chief Traitor John Benedict Roberts?

RJL on January 24, 2014 at 9:00 PM

Good for them. Great news.

gophergirl on January 24, 2014 at 9:01 PM

The pic on the front page is vaguely familiar.

Bigfoot on January 24, 2014 at 10:16 PM

am I to assume that them islamic ”charities” are providing free birth control to their female employees?

burrata on January 24, 2014 at 6:18 PM

As far as I can find, Islam doesn’t ban contraception, so it’s not an issue for them as it is for Catholic-affiliated charities.

J.S.K. on January 24, 2014 at 11:25 PM

Head fake by the Wise Latina.

Little Sisters of the Poor will be IRS’ed after the mid-term’s.

Or they’ll be bought out by Planned Parenthood, stuffed in a sack with some rocks and pitched into the Potomac.

Missilengr on January 25, 2014 at 1:38 AM

Watch it. Democrats want to outlaw “Good” and “Friday” to be expressed in the same sentence ever.

Happy Nomad on January 24, 2014 at 7:41 PM

Oof. I kind of walked into that one!

22044 on January 25, 2014 at 9:42 AM

The fact that any of this law still stands is a shame on the court to begin with.

I’m still waiting for the pictures of Roberts wearing the Gimp outfit to come out. Just because he did what he was told doesn’t mean that the Chicago Gang won’t humiliate him anyway. It’s in their nature.

Physics Geek on January 25, 2014 at 10:40 AM

…testing!

KOOLAID2 on January 25, 2014 at 7:45 PM

how will this affect Hobby Lobby ….?

conservative tarheel on January 25, 2014 at 8:18 PM