An attorney representing the Little Sisters of the Poor and others against Obamacare’s abortifacient, contraceptive and sterilization mandate say the government has essentially conceded defeat in the four-year battle.

Last week, both sides responded to the Court’s question of whether the government’s goal of widespread contraceptive coverage could be managed without violating the religious freedom rights of the plaintiffs. On Wednesday, they filed their responses to each other.

“The government admitted, in its brief, that it did have less restrictive ways to get the coverage to people,” said Becket Fund for Religious Liberty senior counsel Mark Rienzi Wednesday afternoon. “The government’s brief filed today does nothing to change the fact that they already admitted less restrictive alternatives would work. Therefore, they should lose the case.”

Briefly on the Plaintiffs’ Brief

In their brief filed Wednesday, the 37 plaintiffs — including Little Sisters of the Poor, Priests for Life, Oklahoma Wesleyan University and others — argued that their legal objection has nothing to do with the mandated coverage, but only their involvement. Argued the plaintiffs:

The government concedes — albeit begrudgingly, and 14 pages into its 20-page supplemental brief — that its existing regulatory scheme ‘could be modified’ to eliminate the self-certification requirement for petitioners with insured plans without sacrificing its professed objective of “ensuring that the affected women receive contraceptive coverage seamlessly.”

That by itself is enough to “doom” the government’s case, they continued. “As petitioners have explained, so long as they are truly exempt from the contraceptive mandate (not just given another means to comply) — meaning that coverage supplied by third parties is truly separate from petitioners’ own plans as described below (not just labeled ‘separate’ by the government) — that would suffice to eliminate petitioners’ RFRA objection.”

The Government Cries Foul

The government, however, accused the religious groups of changing their argument. “In a sharp departure, petitioners now acknowledge that they cannot invoke RFRA to prevent the government from requiring that the insurers with which they contract also provide separate contraceptive coverage to their employees.”

According to the government, “Petitioners assert that it is not enough that insurers provide that coverage entirely outside petitioners’ health plans and without their involvement, as the accommodation already requires.”

The government’s brief also accused the plaintiffs of pushing for coverage “that … must consist of contraceptive-only insurance policies,” and forcing women to “take affirmative steps to enroll” instead of being automatically covered by insurance plans. “RFRA does not give petitioners the right to insist upon those new conditions. The statute simply does not entitle them to dictate the terms of insurers’ separate dealings with women.”

ACLU Deputy Legal Director Louise Melling, whose group supports the mandate, agreed with the government that the religious groups are creating undue burdens for women by allegedly requiring plans that only cover contraceptives.

These plans “do not exist, and state and federal law would prevent them from existing, as the government details in its brief,” Melling told The Stream. “As a result, tens of thousands of women will be deprived of contraception coverage that they are otherwise entitled by law to receive. Also, it should be noted that the Little Sisters — and many of the other plaintiffs —  have a ‘church’ plan, and, as a result, the government cannot require their third-party administrator to cover contraception.”

There “would be no coverage whatsoever under the plaintiffs’ theory,” concluded Melling.

Rienzi, however, said that contraceptive-only plans are not only possible, but they already exist in federal-state partnerships. “The federal government already works with state governments to provide contraceptive only plans through Medicaid,” he said. “It’s not that the plans can’t and don’t exist. They exist. It’s not that it’s impossible to work with states to do it. The government already works with states to do it. That was discussed in our opening brief. It’s ignored in the government’s brief today because they don’t have a good answer to it.”

“In every other context the government will tell you the healthcare exchanges are awesome,” continued Rienzi. “It’s never really had an explanation why the only people who it won’t let use its exchanges are the people who work for these religious institutions. The bottom line: The government has said alternatives exist. They have to use them.”

Government Hypocrisy?

In its brief, the government argues that “a wealth of evidence shows that ‘participation dramatically declines when people have to take even small administrative steps to participate’ in beneficial programs,” and that if women must initiate contact for coverage, many women would not be insured.

Rienzi told The Stream that this argument doesn’t hold water, especially in light of how one-third of Americans are currently exempted from the mandate — including employees of major corporations like Exxon and Visa.

“That’s one of the huge problems for the government’s argument,” said Rienzi. “For all those other people, the government has said to the Supreme Court that [available] alternatives work great.” The government “has never really had a good explanation as to why the only people in the world who can’t pick up a phone or go to a website or sign up for the doctor’s office are the people who work for these religious institutions,” he continued.

Priests for Life attorney Robert Muise agrees with Rienzi, telling The Stream that it was hypocritical for the government to claim it is not burdensome for religious objectors to sign paperwork, but that for women to engage in pro-actively gaining coverage is prohibitively difficult.

“If you’re going to balance administrative burden versus a substantial burden on religious exercise, those administrative burdens pale in comparison,” said Muise. He also asked why the government has “such a dim view of women” in terms of initiating coverage, and noted “this same woman has to take pro-active steps to sign up for the insurance policy to begin with.”

The step for opting into the contraceptive coverage “could be something as simple as receiving a separate card,” Muise said, “and all you have to do is call a number and activate that card, and you’ve opted into the program.”

When asked by The Stream about the government’s argument that the plaintiffs are attempting to control how women interact with insurance companies for the mandated coverage, Rienzi said that “the religious petitioners here are not trying to control how the contact happens or what contact happens. All we’re saying is, it’s gotta be something separate; it can’t be an automatic part of being on our plan.”