Breaking News

Analysis: The Little Sisters case and EBSA Form 700

UPDATED Sunday afternoon: This post has been updated with links to all of the filings in the case and to Justice Sotomayor’s temporary order.



It seems like a bureaucratic thing to do, but gaining an understanding of what it means to sign government form EBSA 700 is the key to a historic religious controversy now before the Supreme Court in the Affordable Care Act case of Little Sisters of the Poor Home for the Aged v. Sebelius (docket 13A691).

Signing that form, the federal government argues, is a simple way for a religious organization like the Little Sisters to avoid what they regard as a sin:  providing  contraceptives and other pregnancy-related services to their female employees.  But signing, the Little Sisters counter, would be the very act of violating their faith by clearing the way for such services for those employees.

In the government’s view, that is a legal issue, easily resolved by a court.  To the Little Sisters, it is a religious question, and only they can decide what their faith tells them about it.  The Supreme Court may have to decide which it is, and soon.

Three days ago, on New Year’s Day, the duty to file EBSA Form 700 took effect under the Affordable Care Act. (EBSA stands for Employee Benefit Security Administration, a federal agency involved in enforcing the new federal health care law.  The actual two-page form can be viewed here.)

If a religious organization wants an exemption from the new law’s “contraceptive mandate,” because the services required are against its faith, that organization must fill out the form and file it with the insurance company or other entity that runs its employee health insurance plan.   Then, the plan operator arranges for those services, free of charge, to the organization’s female workers.  (The government provides an inducement in the form of a subsidy.)

The government’s idea, of course, was to put a clear gap between the religious group and ultimate access to birth control and related health benefits.  And the government drafted that form precisely to insulate the religious employer from the services, to “accommodate” its faith principles.

Twenty-nine lawsuits have been filed across the country by non-profit and religiously affiliated universities, schools, and charity groups who regard the duty to sign that form to be anything but an “accommodation.”  They believe it puts them at the start of a chain of events that leads inevitably to mandated coverage of the disputed services.  That filled-out form, they contend, simply “deputizes” a plan operator to provide the services.

The first of those cases to reach the Supreme Court involves two groups of Roman Catholic  nuns known as the Little Sisters of the Poor, who run nursing homes in Denver and Baltimore for the elderly poor.  On New Year’s Eve, they, along with their health plan administrator, Christian Brothers Employee Benefit Trust, asked Justice Sonia Sotomayor to block the duty for them to sign EBSA Form 700, the government’s instrument for supposedly freeing them from the ACA contraceptive mandate.

That night, Sotomayor issued a temporary order barring enforcement of that duty, until after she had heard from the federal government.   Actually, she did not put the entire contraceptive mandate on hold, because that is not what the Little Sisters sought.  They asked only that she delay the duty to sign the form until it could be challenged through the lower courts.   She has not gone even that far, yet.  As an alternative, they asked the full Court to consider taking on the case now, for full review, without waiting for completion of lower-court review.  In the meantime, the duty to fill out and submit the form should be put on hold, they said.

Since then, the government has filed its brief opposing a further delay and opposing immediate full-scale review by the Court, and the Little Sisters organizations then filed its reply.  The case thus is now ready for Sotomayor to act alone, or to refer it to her colleagues for further action; that initial choice is hers.  Action could come at any time.

It is important to note that this dispute is not the same as the contraceptive mandate controversy that the Court has already agreed to review this Term, in two cases to be heard together in March.   That dispute is about profit-making businesses, owned by religiously devout individuals or families whose faith opposes some of the contraceptive services required by the ACA.  Any employer who has a health benefit plan for its workers is covered (unless it qualifies for a special “grandfathered plan” exemption that will run out in a few years).  Those two cases are among forty-five lawsuits working their way through the courts involving such businesses.

The Little Sisters case is at a preliminary stage, and is likely at this point only to result in a further delay or a refusal of further delay of the mandate as it applies to them — unless, of course, the Court were to grant full review based on the existing filings.

The Affordable Care Act did not dictate the form-signing duty.  The Act does make the free availability of contraceptive services available to the female employees of any organization that has an employee health plan.  After religious organizations protested that this would intrude on their beliefs, the government worked out an exemption.

Some organizations — churches and synagogues and others whose religious character is obvious — got exempted up front.  But then the government worked out a plan for other religious institutions, which did not qualify for an outright exemption.  It put that plan into effect late last June.  EBSA Form 700 then was adopted as the document to be used to gain that kind of religious exemption.  It became effective on New Year’s Day.

The form requires a key person in the applying organization to certify that, “on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered, [that] the organization is organized and operates as a non-profit entity and [that] the organization holds itself out as a religious organization.”

What the Little Sisters, and similar organizations, found most objectionable about Form 700 is that it is a legally necessary documents before any plan operator may go ahead and provide the free contraceptive services.  The bottom line on the form declares that it is “an instrument under which the plan is operated.”

Thus, the Little Sisters’ argument goes, the head of a religious organization filling out and signing that document is a part of the overall “scheme” to deliver those services to their female employees, and is signing an explicit legal authorization for them, which the ACA then mandates.   The mere act of preparing and signing is, they contend, what violates their faith.

The federal government does not see it that way at all.  Once the form is filed by the religious organization, that ends its involvement in the ACA program.  It cannot be correct, the government contends, for an organization to desire a religious accommodation, get the government to create one, and then not be willing to file the simple form that will bring that about.

Once that form is filed, any obligation to provide the contraceptive services is imposed by the ACA, not by the religious organization sponsoring the health plan, according to the government’s perception.

The government has an additional argument, one that it says applies specifically to the Little Sisters situation:  another federal law, the Employee Retirement Income Security Act of 1974, bars any government regulation of an employee benefit plan run by a church.   That provision is incorporated into the ACA, and the plan administrator for the Little Sisters organization has no legal duty to provide the services at all, and, indeed, the Christian Brothers entity has indicated it will not do so.  There is no way to compel it to do otherwise, the government says.

A “stroke of the pen” will get the Little Sisters entirely out from under the contraceptive mandate, according to the official view.

Those sharply conflicting readings thus have made EBSA Form 700 the crucial factor in the case.

Recommended Citation: Lyle Denniston, Analysis: The Little Sisters case and EBSA Form 700, SCOTUSblog (Jan. 4, 2014, 10:43 PM),