Justice Sonia Sotomayor has offered pro-lifers a glimmer of hope as the Obama administration urges the Supreme Court not to exempt Roman Catholic nuns from the Obamacare mandate to provide birth-control and abortion-related coverage.
The Little Sisters of the Poor is a Catholic charity of nuns based in Denver, Colorado, represented by the Becket Fund for Religious Liberty. The Little Sisters sued over Kathleen Sebelius’s HHS Mandate, which requires employers to provide birth control, sterilization, and abortion-related drugs and services to their employees.
Becket filed suit in September 2013, requesting that the nuns be exempted from including in their healthcare package features that the Catholic Church regards as sinful and immoral. When the federal trial court and the U.S. Court of Appeals for the Tenth Circuit denied that preliminary injunction, Becket applied to Justice Sotomayor, who has jurisdiction over the Tenth Circuit.
On Dec. 31, 2013, Justice Sotomayor granted an emergency injunction. Appointed by President Obama in 2009, she ordered Obama’s Department of Justice to file any response opposing the injunction by Jan. 3, 2014. Solicitor General Donald Verrilli filed that opposition Friday morning, asking the Supreme Court to put the nuns back under the legal requirement to provide contraception, or, if the Court is unwilling to do so immediately, to take the extremely rare step of taking the case away from the lower court at this early stage and place it on the Supreme Court’s docket for briefing and oral argument.
“We are delighted that the Supreme Court has issued this order protecting the Little Sisters,” Prof. Mark Rienzi, senior counsel for the Becket Fund, said in reaction to the temporary injunction. “The government has lots of ways to deliver contraceptives to people – it doesn’t need to force nuns to participate.”
The emergency injunction will stay in place until Justice Sotomayor issues another ruling on whether to keep the current relief in place while the case is ongoing in the lower court or refers this application to the full Court so that all nine justices can vote on it. Now that Obama’s DOJ has weighed in, a second ruling could occur at any time.
Justice Sotomayor is a liberal jurist and considered a strong supporter of abortion. However, she is also a Puerto Rican Catholic and may have personal sympathies for Catholic nuns operating such a commendable charity. Asking her for emergency relief is regarded by many as a brilliant move on the part of the Becket Fund, and her resolution of this issue may have implications for abortion-related litigation for years to come.
There are currently 91 lawsuits against the HHS Mandate. This Obamacare requirement will also be before the Supreme Court later this year for Hobby Lobby and another Christian-owned business. Arguments in those cases are expected in March or April, with a decision by July.
Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.