Little Sisters' Giant Steps: Appeal Returns to the Tenth Circuit - U.S. Tenth Circuit
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Little Sisters' Giant Steps: Appeal Returns to the Tenth Circuit

You could say the Patient Protection and Affordable Care Act's contraception mandate is having its "day in court" with 93 pending cases (as of today). It may even be outpacing same-sex marriage legal challenges.

This week, the Little Sisters filed their appellate brief in the Tenth Circuit as they challenge the U.S. District Court for the District of Colorado's ruling that a preliminary injunction be denied.

The Little Sisters' Claims

The contraception mandate of the Affordable Care Act is not without controversy, and in fact the Supreme Court is hearing a challenge this term as it applies to for-profit, secular businesses. The case here is different because there is no question that the contraception mandate does not apply to the Little Sisters. The challenge lies in a purely administrative matter: The Little Sisters object to filing a certification form which would (a) exempt them from the reach of the Affordable Care Act's contraception mandate; and (b) be provided to a third party administrator.

Once the certification is provided to a third party administrator, if the administrator is subject to ERISA, then the administrator will have to provide access to contraceptive care. Even though "church plans are categorically exempt from ERISA altogether," the Little Sisters object to even filing a form that could somehow, in some way, be used to grant access to contraception -- even if it's through a third party. They want no role in the process at all.

The Legal Analysis

The Little Sisters initiated an action in district court, filing 16 claims alleging violations of the First Amendment, Fifth Amendment, the Administrative Procedure Act, and the Religious Freedom Restoration Act. The district court denied the Little Sisters' motion for preliminary injunction, and the Tenth Circuit affirmed.

The Little Sisters were granted a temporary reprieve from the Supreme Court, who enjoined the Government from requiring that the Little Sisters file the certifcation "pending final disposition of the appeal" by the Tenth Circuit. The Supreme Court did require that the Little Sisters supply the Secretary of Health and Human Services with a notice "in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services," and further noted that "this order should not be construed as an expression of the Court's views on the merits."

What's Next?

The case is back before the Tenth Circuit, which is tasked with reviewing, among other things, the district court's denial of the motion for preliminary injunction. That the Tenth Circuit will come to a different conclusion as it did on emergency appeal is doubtful. Though the Little Sisters won a temporary victory with the Supreme Court, it faces an uphill battle on the merits; the government has conceded that all the Little Sisters have to do is certify that they can't grant access to contraception on religious grounds.

Do the Little Sisters have a right not to file, in the hypothetical instance that a third-party may grant access to contraception in its stead? It seems unlikely, though the method of filing may change as it seems the Supreme Court has given some guidance in this area in its Order.

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