What does the form that the government insists the Little Sisters of the Poor must sign actually do?

Until Justice Sotomayor granted emergency injunctive relief to the Little Sisters of the Poor on New Year’s Eve, very few in the media paid attention to their case. After Justice Sotomayor acted, however, regular courtwatchers and a lot of other media began to tune in. The speed of the transformation in attention has been astounding. Unfortunately, some commentary on the case has been based on an incomplete understanding of the regulations at issue and of the litigation landscape in these cases more generally. (Perhaps it should go without saying, but sources that rely on the Government’s response without discussing either the Little Sisters’ emergency application or the Little Sisters’ reply are particularly suspect).

Probably the biggest misconception about the case is that it is much ado about nothing, because the Little Sisters and Christian Brothers can simply exempt themselves from the Mandate. In the government’s words, “with the stroke of their own pen, [the Little Sisters and Christian Brothers] can secure for themselves the relief they seek from this Court—an exemption from the requirements of the contraceptive-coverage provision—and the employer-applicants’ employees (and their family members) will not receive contraceptive coverage through the plan’s third-party administrator either.”

The government's insistence that the Little Sisters just sign the form misses the point. Signing the form is part of the problem, not a solution. That is why the New Year's Eve injunction was necessary to protect the Little Sisters' religious exercise. In the words of the Little Sisters' reply quoted by Howard Bashman's post linking to it, the temporary injunction "saved Mother Provincial Loraine Marie Maguire from the choice of violating her faith by executing the government's required form, or exposing the Little Sisters' ministry to decimation by IRS penalties."

The government's position rests on an incomplete legal characterization of the form--EBSA Form 700--that the government wants to force the Little Sisters to sign. As Lyle Denniston has observed in a recent post at SCOTUSBlog, understanding this form is necessary to understanding the dispute. 

The government's incomplete characterization of the form is that it is a simple opt-out form that does nothing but signal that the organization is claiming an exemption. Under law, the form does much more than that and something different than triggering an exemption. At minimum, the form is also an authorization for the Little Sisters’ third-party administrator (or TPA) to provide the coverage that the Little Sisters religiously object to providing themselves and for the TPA to be paid by the government for providing this coverage. Beyond an authorization, the form is also a directive that triggers the imposition of legal obligations, but the way it does that is a bit detailed for this post. The authorization point is easier to see because one does not need to scrutinize the Federal Register to find the obligation-imposing regulations that the form incorporates. Under questioning from a federal judge in a similar case, Reaching Souls, Inc. v. Sebelius, the government has already conceded that the form is an authorization for the TPA to provide coverage and receive reimbursement. The government's lawyer stated: "I will concede that the TPA is eligible--once--if they receive the certification, they are eligible for reimbursement. They would not otherwise be eligible." (See p. 96 of the hearing transcript in Reaching Souls, Inc. v. Sebelius.) And the fact that the form is an authorization for the coverage is exactly why Judge Friot (W.D. Okla.) describes it as a "permission slip" in Southern Nazarene University v. Sebelius.   

In a blog post that discusses the government’s response to the Little Sisters' application (but not the Little Sisters’ reply), Michael Dorf has argued that the government’s arguments about the form are “devastating.” If that is so, one wonders why every other pending case involving a church plan similar to the Little Sisters' has thus far resulted in a lower-court injunction (some preliminary, some permanent). By way of contrast with Professor Dorf’s expressed understanding (following the government’s lead), consider the conclusion of Judge Rosenthal (S.D. Tex.) in East Texas Baptist University v. Sebelius:

The act of self-certification does more than simply state the organization’s religious objection to covering or paying for its employees to get emergency contraception. The self-certification act designates the organization’s TPA [that is, third-party administrator] as the  TPA for contraception coverage. The act tells the TPA or issuer that it must provide the organization’s employees coverage that gives those employees free access to emergency contractive devices and products. That act tells the TPA or issuer that it must notify the employees of that benefit. ... But the self-certification form requires the organizations to do much more than simply protest or object. The purpose of the form is to enable the provision of the very contraceptive services to the organization’s employees that the organization finds abhorrent. The form designates the organization’s chosen TPA as the administrator for such benefits and requires the organization’s chosen issuer or TPA to pay for the religiously offensive contraceptive services. The purpose and effect of the form is to accomplish what the organization finds religiously forbidden and protests. 

I suggest that a careful and close reading of the regulations and the form itself (supplemented if one wishes by consideration of Reaching Souls transcript) will show Judge Rosenthal’s understanding of the scheme to be more reliable than the government’s (and Professor Dorf’s).