The plaintiffs say that since sending the government their objection is the action that prompts the coverage through their own health plans, they are forced to act as "gatekeepers" and "facilitate" the objectionable coverage. Furthermore, they argue the government is "hijacking" their health plan, which is an agreement between them and their insurer.
In the proposed process outlined in their supplemental brief, the Little Sisters say that as long as they can tell the insurer outright that they don't want the coverage in their health plan, they don't give any further notice of their objection, and the coverage is provided separately from their plan, this would distance themselves to an acceptable length from the process in terms of their moral culpability.
"They have to be out of it, and it can't be something that is made part of their plan," Rienzi stressed.
Employees, insurance companies and the federal government are aware of who is enrolled in a given company health plan, he said, so the government could easily take action such as publishing a notice about how the public could sign up for separate free contraceptive coverage.
"There are ways to do this without us," Rienzi said of the government's goal of providing contraceptive coverage to employees.
"Other states also have devised means of allowing individuals to contract directly with their insurance companies to obtain contraceptive coverage should their employer-sponsored plan exclude it for religious reasons," the Little Sisters' brief stated.
It happens "all the time" with dental and vision coverage, Rienzi said. The brief mentions this scenario, "in which individuals separately contract with insurance companies to obtain forms of coverage that are excluded from their principal health plans."
A ruling in the Little Sisters' case is expected this summer. The ruling could have far-reaching implications, as more than 300 plaintiffs across the country have filed lawsuits challenging the federal contraception mandate on grounds of conscience.
Founded in 1839 by Saint Jeanne Jugan, the Little Sisters of the Poor are dedicated to caring for the elderly and dying poor in more than 30 countries worldwide. The sisters operate 27 houses for the elderly in the United States.