Hearing oral arguments by phone, justices consider ongoing challenge in religious freedom case.
One of the first oral arguments the Supreme Court has heard by teleconference, and one in which one justice participated from a hospital room, involved the Catholic religious order the Little Sisters of the Poor and their ongoing fight in a religious liberty case.
“The Little Sisters of the Poor again find themselves in court defending their community against attempts to force Catholic religious to violate their conscience,” the United States Conference of Catholic Bishops said in a statement ahead of oral arguments Wednesday morning.
Originally, the case arose from the controversial implementation of a rule that grew out of the Affordable Care Act. That 2010 law included a section that requires coverage of preventive health services and screenings for women. The following year, the Obama administration required employers and insurers to provide women with coverage at no cost for all methods of contraception approved by the Food and Drug Administration. The so-called “contraceptive mandate” carried an exemption for houses of worship, but not faith-based institutions.
The Little Sisters of the Poor became a high-profile litigant in fighting the requirement. Although they operate elderly care homes and employ mostly lay people, they were vindicated in their claim that they should not have to pay for or facilitate insurance policies that cover devices and practices that are contrary to Catholic teaching.
In 2016, the Supreme Court unanimously removed lower court rulings against the Little Sisters and protected them from the fines they would otherwise have to pay to the Internal Revenue Service.
The case went up to the high court once again because of Pennsylvania’s and New Jersey’s challenge to a 2017 federal rule that would allow the Little Sisters to opt out of the contraceptive mandate.
In his opening statement during the one-hour-forty-minute session, U.S. Solicitor General Noel Francisco said the Affordable Care Act itself, President Barack Obama’s signature legislation from 2010, authorized such exemptions.
But Justice Ruth Bader Ginsburg, who participated from a hospital room after treatment for a gallbladder infection this week, argued that the Trump Administration’s expansion of the exemption “tosses to the winds entirely Congress’s instruction that women need and shall have seamless, no-cost, comprehensive coverage. This leaves the women to hunt for other government programs.”
Ginsburg said the 2017 rule unfairly shifts the cost from employer to employee.
Francisco responded that there is nothing in the ACA that requires contraceptive coverage. “Rather, it delegated to the agencies the discretion whether or not to cover it in the first place. We think that also includes the discretion to require that most employers provide it, but not the small number who have conscientious objections.”
Paul Clement, an attorney for the Little Sisters of the Poor, said that the penalties that would be imposed on the order are so massive that it amounts to a burden on religious exercise.
Justice Brett M. Kavanaugh acknowledged that there are “very strong interests” on both sides here, and that fact makes the case difficult. “There is religious liberty for the Little Sisters of the Poor and others,” Kavanaugh said. “There is the interest in ensuring women’s access to health care and preventive services, which is also a critical interest. So the question becomes: Who decides how to balance those interests?”
Becket Law, which has been representing the Little Sisters of the Poor, said in a statement on Wednesday, “This morning, it was made clear that Pennsylvania takes an even stingier view of the government’s ability to make religious exemptions than the Obama administration did, denying that the Affordable Care Act even gives the government authority to exempt churches.”
“We are hopeful that the Court will protect us as it did in 2016 and eager to be rid of this legal trouble which has hung over our ministry like a storm cloud for nearly a decade,” said Mother Loraine Marie Maguire of the Little Sisters of the Poor. “In the midst of the COVID-19 pandemic, when the lives of our residents face a real and imminent threat, we are more eager than ever to be able to care for our residents without being harassed by governments.”
The Little Sisters are deeply involved in serving the elderly poor, especially by running homes for them.
“The Court has ruled in the Little Sister’s favor twice before, recognizing what was obvious from the very beginning — that the federal government doesn’t need nuns to help it distribute contraceptives and that forcing them to participate is plainly unconstitutional,” said Mark Rienzi, president of Becket. “We hope that the Supreme Court ends this litigation once and for all.”