The federal government is trying to force the Little Sisters of the Poor to change their health plan to begin providing services such as the week after pill, which violate the Little Sisters' faith.
Early on, the government asserted that the Little Sisters were being unreasonable because the government would provide these services outside of the Little Sisters’ plan. Those public claims and early arguments in court were heavily amplified by the Administration’s allies and even the media.
But the government’s early claims simply did not reflect the facts. The form the government wanted the Little Sisters to sign says in the fine print that signing the form will change the plan and contract with the insurance provider. And in its briefing before the Supreme Court, the government finally admitted that their supposed “opt-out” is really an opt-in.
The government now admits that the Little Sisters’ participation is necessary to the process of delivering these services. And on page 38 of its Supreme Court brief, the government admitted that signing the form would in fact result in the services being delivered through religious employer plans. They use a lot of acronyms but here is the full quote from the government’s brief (brackets added to explain technical terms):
“If the objecting employer has a self-insured plan, the contraceptive coverage provided by its TPA [the company that processes insurance claims for the employer] is, as an ERISA [the law governing these plans] matter, part of the same ERISA plan as the coverage provided by the employer.”
In more plain English, here’s the quote again: “the contraception coverage…is part of the same…plan as the coverage provided by the employer."
Evolution of the Government's Arguments:
In November of 2013, the government told federal courts in writing that the Little Sisters were “fighting an invisible dragon” because the Sisters were wrong that “signing the self-certification” form was anything but a simple “opt out.”
But in September of 2015, the government admitted to the Supreme Court that, for most religious ministries, signing the form ensures that “the contraception coverage…is part of the same…plan as the coverage provided by the [ministry].” And in February of 2016, the government finally acknowledged to the Court that forcing each objecting ministry to sign its form is “necessary” to its contraceptive-delivery scheme.