Sotomayor Grants Last-Minute Stay In Obamacare Challenge From Catholic-Related Groups

250px-Sonia_Sotomayor_in_SCOTUS_robe220px-New_Year_Ball_Drop_Event_for_2012_at_Times_SquareMany of us stayed up to midnight last night and watched the ball come down in Times Square. If you were still sober enough to notice, the person triggering the dissent was none other than Associate Justice Sonia Sotomayor. It turns out that that was not the only thing that she was doing on New Year’s Eve. Late Tuesday with only hours to go before January 1st — and the activation of the Affordable Care Act (ACA) — Sotomayor granted a stay requested by Catholic-affiliated groups to prevent the implementation of part of the ACA to require them to supply contraceptive services to employees in violation of their religious beliefs. The decision follows a refusal of the United States Court of Appeals for the Tenth Circuit to issue a stay. The stay order by Sotomayor was requested from Catholic nuns running the Little Sisters of the Poor Home for the Aged in Denver and now joins a stay issued earlier by the United States Court of Appeals for the District of Columbia.

The decision guarantees that no one will have morning after regrets today in allowing the law to be implemented without a final resolution of the religious freedom claims. Sotomayor could still lift the stay since she gave the Obama Administration until 10 am EST on Friday to respond to the order. Until then, the government is “temporarily enjoined from enforcing against applicants the contraceptive coverage requirements imposed by the Patient Protection and Affordable Care Act.”

The decision is a victory for the Becket Fund, which argued that “the ‘accommodation’ still forces the Little Sisters to find an insurer who will cover sterilization, contraceptive and abortion-inducing drugs and devices.”

The stay makes sense given the Court’s decision to hear similar arguments in the Hobby Lobby case discussed earlier. The case involves objections from businesses and individuals like David Green, founder and CEO of Hobby Lobby, who insist that the Act’s required support for contraceptive services violates religious rights. Two cases were accepted: Sebelius v. Hobby Lobby Stores, Inc. (13-354); and Conestoga Wood Specialties Corp. v. Sebelius (13-356).

Under the ACA, non-for-profit religious corporation have an exemption. However, Hobby Lobby is a for-profit company that is run according to the family’s religious beliefs. These new Catholic-affliated groups are not parts of the Church but educational institutions like Catholic University and other types of enterprises.

While the Obama Administration arranged for insurers to pay for such services for religious objectors, that compromise would still require the businesses to sign off on the payment for services in contradiction to their beliefs. Such stays are significant legally because they are granted on a view that the party is likely to prevail on the merits. Earlier a D.C. Circuit panel split 2-1 in granting a similar stay. Judge David S. Tatel dissented in the case, concluding “[b]ecause I believe that appellants are unlikely to prevail on their claim that the challenged provision imposes a ‘substantial burden’ under the Religious Freedom Restoration Act, I would deny their application for an injunction pending appeal.”

Putting aside that standard, the decision could reflect an accommodation for those members who granted cert in Hobby Lobby. The decision freezes the status quo and, if not reversed after Friday, would allow the Court to proceed to the merits in the Hobby Lobby case without having chaos over whether and how the provision can be enforced. That case is expected to be argued in March and decided by summer.

127 thoughts on “Sotomayor Grants Last-Minute Stay In Obamacare Challenge From Catholic-Related Groups”

  1. David,

    I’m sorry…. Do you think that all government and business functions should cease just because it’s December 25… Isn’t that government control…. And kinda endorsement of the Christian notion….. Just because…..

    1. AY wrote: “Do you think that all government and business functions should cease just because it’s December 25…”

      No, of course not.

      Government can decide for itself whether they are open or not, and businesses should decide for themselves. Government should not force businesses either to be open or closed on Dec. 25, Jan. 1st, or any other day. That’s the way it is now, and I think it works fine.

      My business often works when government is closed. Doesn’t bother me a bit. We often joke about how few hours government employees work, often comparing them to “banker’s hours.”

  2. Elaine… I read the War on Christmas…. Very informative….. Thank you….

  3. AY,

    When Americans banned Christmas
    The first ‘War on Christmas’ was declared almost 400 years ago, courtesy of our Puritan forefathers

    How did the first settlers celebrate Christmas?

    They didn’t. The Pilgrims who came to America in 1620 were strict Puritans, with firm views on religious holidays such as Christmas and Easter. Scripture did not name any holiday except the Sabbath, they argued, and the very concept of “holy days” implied that some days were not holy. “They for whom all days are holy can have no holiday,” was a common Puritan maxim. Puritans were particularly contemptuous of Christmas, nicknaming it “Foolstide” and banning their flock from any celebration of it throughout the 17th and 18th centuries. On the first Dec. 25 the settlers spent in Plymouth Colony, they worked in the fields as they would on any other day. The next year, a group of non-Puritan workmen caught celebrating Christmas with a game of “stoole-ball” — an early precursor of baseball — were punished by Gov. William Bradford. “My conscience cannot let you play while everybody else is out working,” he told them.

    Why didn’t Puritans like Christmas?

    They had several reasons, including the fact that it did not originate as a Christian holiday. The upper classes in ancient Rome celebrated Dec. 25 as the birthday of the sun god Mithra. The date fell right in the middle of Saturnalia, a monthlong holiday dedicated to food, drink, and revelry, and Pope Julius I is said to have chosen that day to celebrate Christ’s birth as a way of co-opting the pagan rituals. Beyond that, the Puritans considered it historically inaccurate to place the Messiah’s arrival on Dec. 25. They thought Jesus had been born sometime in September.

    So their objections were theological?

    Not exclusively. The main reason Puritans didn’t like Christmas was that it was a raucously popular holiday in late medieval England. Each year, rich landowners would throw open their doors to the poor and give them food and drink as an act of charity. The poorest man in the parish was named the “Lord of Misrule,” and the rich would wait upon him at feasts that often descended into bawdy drunkenness. Such decadence never impressed religious purists. “Men dishonor Christ more in the 12 days of Christmas,” wrote the 16th-century clergyman Hugh Latimer, “than in all the 12 months besides.”

    When did that view win out?

    Puritans in the English Parliament eliminated Christmas as a national holiday in 1645, amid widespread anti-Christmas sentiment. Settlers in New England went even further, outlawing Christmas celebrations entirely in 1659. Anyone caught shirking their work duties or feasting was forced to pay a significant penalty of five shillings. Christmas returned to England in 1660, but in New England it remained banned until the 1680s, when the Crown managed to exert greater control over its subjects in Massachusetts. In 1686, the royal governor of the colony, Sir Edmund Andros, sponsored a Christmas Day service at the Boston Town House. Fearing a violent backlash from Puritan settlers, Andros was flanked by redcoats as he prayed and sang Christmas hymns.

  4. David… Did you know that the some of the Originally colonies forced business’s and government offices to stay open on a December 25….. And made it a crime to close on that day……

    1. AY wrote: “Did you know that the some of the Originally colonies forced business’s and government offices to stay open on a December 25…”

      Please don’t tell me that you agree with this kind of government control.

  5. You know David…. One can choose to do business elsewhere….. I bought something at the store during the holidays….. I took it back on the 24th and told the clerk I forgot that I was not doing business with a business that interfered with a woman’s right between her and her doctor….. I was pleasant to the clerk…. And she said she wished more folks would send the message up to the store command….

    What’s really funny…. Is the same excuse cannot be made for Viagra….. And btw… Some folks need birth control for other health reasons…..

    1. AY wrote: “the same excuse cannot be made for Viagra”

      Don’t get me started on Viagra. There is no good medical reason this should be covered under the ACA, and there are huge religious objections to it.

      AY wrote: “Some folks need birth control for other health reasons”

      A better way to say this is that some folks need hormone therapy for health reasons. I don’t think these religious people object to that as long as it is not prescribed for the purpose of what they consider to be the murdering of unwanted people.

  6. The Hobby Lobby stores are closed on Sundays for religious reasons. Do you think it would be constitutional to pass a law forcing them to be open on Sundays?

    One could argue that closing on Sundays causes financial loss to their employees.

    Forcing them to open their stores on Sunday seems more benign to me than criminalizing their desire not to provide the means for women to do what they believe is murdering unborn babies. Would their fighting such a law also constitute a politically motivated objection rather than a reason sincerely founded in their religious faith?

  7. pdm:

    As I have argued in two columns on the issue, my opinion is that nothing I have seen in the ACA (no, I haven’t read the whole thing) implicates the First Amendment or imposes unconstitutional restrictions on religious freedom. I believe it would have been wiser (and better policy) to refuse to grant any exemptions to religious groups. And it is my cynical belief that companies like Hobby Lobby are raising objections under the Free Exercise Clause to cloak what are really just political objections to the legislation.

    1. Mike Appleton wrote: “it is my cynical belief that companies like Hobby Lobby are raising objections under the Free Exercise Clause to cloak what are really just political objections to the legislation.”

      So you don’t think that David Green truly believes that murdering unborn babies is immoral? Have you visited the Hobby Lobby website to see how religious the corporation is? Religion is part of their corporate charter.

      With over 60 lawsuits over this contraception exemption issue, and the fact that the religious exemption was built into the law right from the start, I find it stretches credulity that this person is just trying to make a political statement.

      I agree with you that the exemptions should not be in the law in the first place, but for different reasons. Exemptions create an unequal law. It is an indication of a defect in the law. The law is itself excessively political and favors a particular progressive ideology over traditional ideology. Laws should be constructed in a way that applies equally to everybody or they should not be laws in the first place.

      If the ACA was presented originally with no religious exemptions, my prediction is that it never would have been passed into law in the first place. There were numerous deals made to garner votes to pass the law. Although nobody actually read the whole law before it was passed, so much attention would have been focused on the abusiveness of the law toward religious sensibilities that at least a few votes would have been lost and the bill would have failed. Half of the country does not want the ACA law.

  8. Annie,

    Can a hospital implant a feeding tube without consent? If a patient is unconscious, are they required to get a family member to consent? I assume a feeding tube insertion is not done under emergency circumstances. There would be time available to try to gain a consent.

  9. pdm, I don’t know the religion of the doc. He had an anglo name, if I had to guess, Protestant, maybe Congregationalist. That’s strictly shoot from the hip. I was not getting a religious vibe, more “I’m the doctor and we treat patients, we don’t suspend treatment.” That’s a secular religious fervor among docs. He was short, that enters into it also. The history of the world would be much different if all men were the same height.

  10. Mike, badly written opening sentence on comment at 9:30. My meaning would be clearer had I written: I do not think there is a conservative “wing” of the RCChurch. There is simply a conservative RRChurch.

  11. I’ve taken care of too many elderly Alzheimer and dementia patients with feeding tubes in years past. The push for feeding tubes waned during the last 10 years, thankfully. It was horrid watching a person who could not stay upright long enough in bed during the time it took for the feeding, they would slide down and aspirate and then need suctioning. Their digestive systems were no longer absorbing the rich tube feelings and they had chronic diarrhea, which because of their dementia would end up all over them, the bed, the wall, in their mouths. There were many times the feelings had to be held due to too much residual in the stomach and then the nurse had to explain to the family member why her mother’s feeding was being held so often, that we weren’t trying to starve her, but to keep her from aspirating on the feeding and getting pneumonia, which they did and then had to be put on antibiotics so often that they ended up getting a resistant strain of bacteria. So many horrible complications from forcing a human body to function longer than nature dictates. I’ve had discussions with those that don’t understand the level of suffering that happens to these patients.

    I worry that with the surge of fundamentalism that healthcare workers will be going back to the bad old days of keeping people alive who should be allowed to die humanely.The talk of death panels by Palin was so idiotic. Advanced directives were around for the last 25 years at least, long before the ACA.

  12. Mike, I do not think there is a conservative wing of the RCChurch. Or maybe I should say where is the moderate wing of the RCC? I have not read any impassioned (or even quiet) articles by any important layman or official of the Church.calling for the right of American non-Catholic women to determine the course of their reproductive health. Is it your view that there are some significant number of people in the pews who quietly disagree with the bishops? If there are, I wish they would speak up – very loudly. Quiet doesn’t work these days. Quiet only supports the status quo.

    If you have a bit more time, I would be interested in learning what you think the Obama admin should have done regarding the contraception mandate.

  13. Nick, we are a step beyond the importance of a DNR. That’s not disputed. The problem is – will it be respected? Has it been written correctly? Does it cover this particular illness as interpreted by some official? Your story illustrates one problem. Your doctor, his agreement with your understanding of the patient-doctor relationship and unfortunately you should also be concerned about his religion now that there are so many empowered fundamentalists around. Now raise the level of your concern by about 500xs if you find yourself in a Catholic hospital cause now a fair bit of the staff believe they have God’s moral law on their side.

    I agree that in many cases a DNR will work. But there are no assurances that you won’t find yourself at 80 years of age with the wrong doc, or in the wrong hospital, having your ribs broken by violent CPR, on a vent, with a feeding tube.

  14. pdm, You’re correct. Now, you ripped me on the Catholic Church and “my anecdotes” on another thread. I really don’t want this to get nasty. This is about my father, which I swear on his soul.

    On January 13th 1989 my Dad had a TIA. He was brought to the Bristol Hospital for a night. In his room was a man on a ventilator. I called my dad that evening. He, like myself, was not one to talk on the phone but he was quite talkative that night. During the course of the conversation, he said a couple times how awful it was for that man to be living like that. He then said, “I don’t ever want that.” The magic words it turned out. He never said it to anyone else.

    A month later my father had a massive stroke. He was totally unresponsive and had a feeding tube inserted. He was in a public hospital[Hartford Hospital]. We had a family conference via phone and I told everyone what my father had said. My family knows I’m as honest as they come and we ALL agreed[mom and my 3 siblings] that the feeding tube should be removed. My mom spoke w/ the primary doc and he would not remove it. pdm, when the feeding tube is started it can be very difficult to have it removed. There was little controversy that there was severe and irreparable damage to my Dad’s brain. The doc would not take my mom’s word and refused removal. I got on a plane and flew to Bradley Field in Hartford, rented the car, and had a sit down w/ this doc. He gave me the Hippocratic oath and all the horseshit. I looked him in the eye and said what I just told you about the conversation w/ my dad. He believed me, but he wasn’t done. He called in my mom. He then went through vivid details of how my dad would starve and dehydrate. He through in curveballs, “What if he gets pneumonia, do we not use antibiotics?” My mom kept looking @ me. She was overwhelmed. I just kept saying “No.” My mom was one tough woman. As we left she broke down and said, “That was horrible, it shouldn’t be that way.”

    Here’s the bitter irony, pdm. That same doc[Kaiser Permanante] DRAGGED his feet 5 years earlier when my dad was suffering from gastro espoghageal cancer. He needed surgery but this guy was scheduling tests and scans months out. Again, I got on a plane and got his mind right and had the life saving surgery he needed. So, in that death meeting we had some history.

    pdm, these stories go on every day. I bet others here have similar stories. You got to get it writing. It isn’t about the Catholic Church, it’s about the law and the Hippocratic oath. When I take a step back I can on some level understand the reticence for a doctor to stop treatment. But, I know there are many much more humane docs than that the little Nazi I dealt w/. To date, that was the hardest thing I ever did in my life. That prick made it harder. It had NOTHING to do w/ religion.

  15. Let’s not forget that some women take birth control pills for certain medical conditions–They aren’t just used to prevent pregnancy.

    Catholic Bishops and Religious Rights vs. Women’s Rights

    There has been a lot of discussion in the media recently about the HHS contraception coverage mandate. Much of the talk has focused on women’s sex lives and the types of birth control that doctors prescribe for women in order to prevent pregnancy—as well as on the separation of church and state and the mandate’s infringement on religious freedom and the Catholic Church’s First Amendment rights. There has been much less talk about women’s health, women’s rights, and the use of birth control pills to treat certain female medical conditions, including polycystic ovary syndrome and endometriosis. Both of these conditions can cause severe pain and lead to other health problems. According to Bruce Nolan of The Times-Picayune, the Institute of Medicine—which is a non-profit advisory panel—recommended the contraception coverage because “those services are basic to individual health.”

    Many Americans—especially women—think that contraceptive coverage and other “female-related” medical services ARE basic to women’s health. Catholic bishops, however, believe that contraceptive coverage and some hospital services are in conflict with the church’s “moral conscience.” The bishops contend that the church has the right to deny certain types of health insurance coverage for women who work for Catholic institutions. It doesn’t matter to the bishops whether the female employees are members of other religions…are atheists or agnostics. The church’s position is that all female employees of Catholic institutions should be denied access to all forms of contraceptives and not be provided medical insurance that would cover the cost of certain medical procedures. The bishops also believe that certain types of treatment and procedures—including tubal ligations—should not be provided to women at Catholic hospitals.

    When I was doing research on an earlier post, The National Women’s Law Center Takes a Position on Contraceptive Coverage & “Extreme” Legislation, I came across some information about Catholic hospitals that caused me great concern. The information left me with the belief that Catholic bishops and the Catholic Church do not seem to value the lives of women as much as they value the lives of men and the unborn. In this post, I will look at the “usurpation of female patients’ rights” at Catholic hospitals. I think after reading my post you will understand why I drew the conclusion that I did.

    In January of 2011, the National Women’s Law Center issued a report about women’s health and lives being at risk at some hospitals because of religious restrictions. The NWLC report includes a legal analysis of the implications of its study—which focused on Catholic-affiliated hospitals’ treatment of women with pregnancy complications.

    From the National Women’s Law Center:

    The Center’s report, Below the Radar: Ibis Study Shows that Health Care Providers’ Religious Refusals Can Endanger Pregnant Women’s Lives and Health, demonstrates that certain hospitals, because of their religious beliefs, deny emergency care, the standard of care and adequate information to make treatment decisions to patients experiencing miscarriages and ectopic pregnancies. The study and report focused on cases where no medical intervention was possible that would allow the patient to continue her pregnancy and where delaying treatment would endanger the woman’s health or even life. These hospital treatment practices violate federal laws and regulations that are intended to protect patients and ensure the delivery of quality health care services at hospitals receiving Medicare funds…

    “Most women assume that when they go to a hospital they will be offered the best medical treatment options for their diagnosis,” said NWLC Co-President Marcia D. Greenberger. “But this report paints a chilling picture of women with ectopic pregnancies or suffering miscarriages who are not offered the full spectrum of medically appropriate treatment options because they have gone to a hospital whose religious affiliation conflicts with the provision of those options. To make matters worse, women denied certain medical options may never even be told that these options could, for example, improve their chances of having a healthy pregnancy in the future. Women who fail to receive appropriate treatment or to be informed that preferable options would be provided in another hospital can suffer serious harm with long-term adverse consequences to their lives and health.”

    The reports highlight stark cases where doctors noted a discrepancy between the medically-accepted standard of care for miscarriage and ectopic pregnancy and the treatment provided by hospitals due to their religious affiliation. For example, while the standard of care for certain ectopic pregnancies requires patients to receive the medication methotrexate, doctors in the study reported that their hospitals forbade the use of the drug. Instead, patients were either transferred to another hospital or required to undergo unnecessary and invasive surgery to resolve their condition, thereby being denied the standard of care.

    One doctor in the study reported several instances of potentially fatal tubal ruptures in patients with ectopic pregnancies at her Catholic-affiliated hospital. She said that her hospital subjected patients with ectopic pregnancies to unnecessary delays in treatment, despite patients’ exhibiting serious symptoms indicating that a tubal rupture was possible. These patients, therefore, were denied emergency care to which they were legally entitled.

    In some of the miscarriage cases described in the Ibis Study, the standard of care also required immediate treatment. Yet doctors practicing at Catholic-affiliated hospitals were forced to delay treatment while performing medically unnecessary tests. Even though these miscarriages were inevitable, and no medical treatment was available to save the fetus, some patients were transferred because doctors were required to wait until there was no longer a fetal heartbeat to provide the needed medical care. This delay subjected these patients to further risks of hemorrhage and infection and could have violated their right to receive emergency medical treatment under federal law.

  16. pdm:

    I understand your concern. I have frequently expressed my unhappiness over the alliance in recent years between the conservative wing of the Catholic Church in this country and fundamentalist Christian groups. Although it was an outgrowth of the anti-abortion movement, its presence was evident during the Schiavo controversy. In addition, I am concerned that the constant assertions by the right that Christianity is under assault by liberals has created something approaching panic among some church leaders over the future of religious freedom. The contraception controversy is a result of the Obama administration’s efforts to calm those folks down, and I think it has been a mistake.

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