IT HAS not been a relaxing 2014 for Donald Verrilli, the solicitor-general. On Tuesday, nine hours before she pressed the crystal button initiating the ball-drop in Times Square, Sonia Sotomayor gave Mr Verrilli a holiday-week assignment: by Friday the government had to respond to a Catholic charity's objections to the Obamacare provision requiring employers to cover birth control in their health plans. The Little Sisters of the Poor, a home for the elderly in Colorado, claimed that its religious liberty was unduly burdened by the mandate, and Justice Sotomayor granted a temporary injunction on the provision.

This morning, Mr Verrilli duly submitted his 37-page memorandum responding to the injunction. It is a persuasive document.

To begin, the Little Sisters of the Poor and several dozen similar religious organisations are not actually bound by the contraceptive mandate. In February 2012, the Obama administration responded to complaints from faith-based groups about the provision by issuing an accommodation for employers whose religious principles prohibit certain forms of birth control. Such employers need not pay for contraceptives themselves, Mr Obama allowed. Instead, a third-party insurance provider would be required to provide those Obamacare benefits to women. This compromise ensured that women would receive federally guaranteed benefits without asking religious groups to violate their beliefs. It was received favourably by many, though by no means all, Catholic leaders.

The accommodation works this way: groups seeking exemption from the general obligation “to contract, arrange, pay, or refer for contraceptive coverage” must fill out a form “self-certifying” their religious objections to the mandate and provide a copy of the form to “the third-party administrator of their self-insured group health plan.” That’s it. They pay nothing toward their employees’ birth-control pills or Plan B, nor do they provide insurance that pays for these or other methods of contraception. The federal government, acting under ERISA, then requires the insurance company to foot the bill for those services. (Providing that coverage, the Obama administration reasoned, would end up saving the insurance companies money since contraception is cheaper to cover than pregnancy and childbirth.)

The Little Sisters did not feel comfortable with this arrangement, however, and in effect requested an exemption from the terms of the exemption. By signing the form indicating their intention to take advantage of the accommodation, the group said, it would be “authorising” its third-party provider to cover what it considered to be sinful medical services. Mr Verrilli took dead aim at this inference, quoting the district-court decision that “nothing on the face of the Form expressly authorizes the provision of contraceptive care, particularly with regard to church plans.” In a blog post on Wednesday, Marty Lederman, a law professor at Georgetown University, wrote, “any ‘direction’ to Christian Brothers Services [the third-party provider Little Sisters uses] would come from federal law, not from Little Sisters of the Poor.”

The Little Sisters’ claim that filling out the form implicates them in the sinful prevention of embryo fertilisation or implantation works well on a theory of action holding that a butterfly flapping its wings is responsible for the hurricane that ensues on the other side of the globe. But in the socio-political context, the contention is suspect. “As with any religious accommodation of this kind,” Mr Lederman writes, “the whole point of the accommodation is that the opting out by the objector would shift the responsibility to someone else (whether a state actor or, as here, another private party) to do what the religious objector declines to do.” Mr Lederman then spins through several examples of actions that have an effect the objector would construe as sinful. “[C]onsider a religious conscientious objector to war: Because his refusal to fight means that some other young person will take his place to kill and be killed, does that mean that he has a valid religious objection to the continuation of the war itself (or at least to the drafting and deployment of any further troops)?”

Of course not. Nor does a pacifist taxpayer have a legally recognised conscientious objection to paying taxes to a government engaging in military operations. (Sorry, Thoreau.) Citizens don’t have line-item vetoes over budget items that strike them as funding sinful activities or programmes.

Nor does religious liberty require that those seeking accomodation be exempt from a smidgen of paperwork. Mr Verrilli has the better of the argument here as well:

Applicants draw flawed analogies when they say that under the court of appeals’ reasoning, “Quaker conscientious objectors would suffer no penalties if they would just join the military; Jewish prisoners would suffer no burden if they would just eat the pork; Seventh Day Adventists would not lose their benefits if they would just work on Saturdays.” To mirror the situation here, the question in all of those cases would be whether the religious objector could be required to sign a certification form in order to secure the religion-based exemption he sought. It is applicants’ position, not that of the court of appeals, that would lead to absurd results in those cases, for it would seemingly mean that the Quaker could not be made to attest to his status as a conscientious objector before being absolved of his military obligations; that the Jewish prisoner could not be required to fill out a form saying he had a religious objection to the consumption of pork before he was provided an alternative meal; and that the Seventh Day Adventist could not be obligated to state that he had a religious objection to working on Saturdays before being relieved of his shift.

But I’ve buried the lede. All of this reasoning is effectively moot in the case of the Little Sisters and its siblings. Because as it turns out, there is a rather large loophole in the Obama accommodation from 2012, one that female employees of these organisations may justifiably bemoan. The federal government is empowered to ask third-party insurers to provide contraceptives to employees only under certain circumstances. The Little Sisters’ health plan is a “church plan” and is therefore “exempt entirely from regulation under ERISA.” Since “the third-party administrator of applicants’ church plan says it will not provide contraceptive coverage,” signing the self-certification form will have no effect whatsoever. The insurer is not inclined to provide these services and is under no legal obligation to do so. No Plan B, no birth-control pills, no hurricane.