The Little Sisters of the Poor Home for the Aged (“Little Sisters of the Poor”), a non-profit religious organization that operates a chain of nursing homes for the elderly poor, has argued to the U.S. Supreme Court that it should be exempt from the contraceptive coverage provision of the Affordable Care Act (ACA) because it places a substantial burden on its exercise of religious liberty.
Let’s be clear: the substantial burden of being exempt from ACA regulations is not on the Little Sisters but is squarely on the shoulders of its low- and middle-income nursing home employees, mostly women, and their families.
The Little Sisters of the Poor obtains its employees’ health insurance plan from the Christian Brothers Employees Benefit Trust, a self-funded “church plan.” The church plan is already exempt from the ACA contraceptive coverage provision. Christian Brothers Services, the Catholic organization that administers its plan, is also already exempt. And, under the current rules, the Little Sisters of the Poor, as a religious organization, is exempt from having to provide contraceptive coverage to its employees. It must only fill out a simple certification that such coverage would violate its religious principles.
The Little Sisters of the Poor is in no way burdened by the ACA. So why did it ask for emergency relief from the Supreme Court? Little Sisters of the Poor has claimed that even completing a self-certification would place a burden on its religious liberty. Both the federal district court and the 10th Circuit Court of Appeals denied the Little Sisters’ request for injunctive relief, but Justice Sonia Sotomayor granted temporary relief and asked the Obama Administration to respond. The U.S. Solicitor General has argued that the Little Sisters of the Poor has no claim, and the Feminist Majority Foundation agrees.
Acquiring contraceptives without insurance coverage is costly and often beyond the reach of low-income and middle-income employees. Denying the means of effective family planning is a denial of fundamental health care for women of reproductive age. Moreover, contraceptives are frequently prescribed to treat common, yet serious, disorders such as ovarian cysts or endometriosis. The burden here is clearly on women and their families.
Fortunately, millions of women now have access to contraceptives without co-pays or deductibles under the ACA. The Little Sisters of the Poor case affects only a small number of religious institutions that employ people – from many different religious or non-religious backgrounds – and have a third-party administrator that is religiously exempt, as well as a self-insured plan. The Feminist Majority Foundation believes these employees should also be covered. No woman should be denied the opportunity for coverage.
Simply put: women, not their bosses, should decide.