Understanding the form that supposedly exempts the Little Sisters of the Poor from the HHS contraceptive mandate

As you may be aware, the Tenth Circuit recently denied the application to stay application of the Obama Administration’s contraceptive mandate filed by the Little Sisters of the Poor, but Justice Sotomayor granted the Little Sisters’ application. Since then, however, there has been a lot of confusion about the issues in the case.

To hear the Obama Administration tell it, the Little Sisters’ claimed injury — i.e. having to provide insurance that covers contraceptives and abortifacients to which they object on religious and ethical grounds — is entirely self-inflicted. All the Little Sisters have to do, they say, is sign a simple form, called ESBA Form 700, and they would be exempt from the mandate.

Fortunately, Prof. Kevin Walsh at Mirror of Justice has taken it on himself to explain why the government’s argument fails to correctly understand the Little Sisters’ argument. By signing EBSA Form 700, the Little Sisters would be authorizing their third-party administrator to provide the coverage that the Little Sisters strenuously object to providing. As the Little Sisters see it, they cannot take advantage of the government’s accommodation to them without facilitating the very acts to which they object. So the issue is at least more complicated than it might appear at first glance.

For more on this case, you should also check out the Wall Street Journal’s excellent editorial, “Little Sisters of the Government,” and Lyle Denniston’s characteristically comprehensive discussion of the issues at SCOTUSblog.

It will be interesting to see how this turns out. A further ruling could come from Justice Sotomayor or the full Court at any time.


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