Supreme Court sends more mandate cases back to lower circuits

Washington D.C., May 24, 2016 / 16:30 pm

After sending the Little Sisters' HHS mandate case back to the circuit courts on May 16, the Supreme Court voided two more mandate cases with Catholic plaintiffs on Monday.

The court was expected to rule this summer on the constitutionality of the "opt-out" process for non-profits with the HHS contraception mandate.

The Little Sisters of the Poor, who care for the poor elderly in homes across the country, have argued that the process – where they would notify the government of their religious objection to providing the coverage for contraceptives, sterilizations, and abortion-inducing drugs for employees – still forced them to be complicit with evil.

Since the sisters knew that voicing their objection would ultimately trigger the coverage being provided within the structure of their health plan, they would still be "facilitating access to contraceptives and abortifacients," they said.

This amounted to coercion by the government, they added, since they would have to pay massive fines – up to 40 percent of yearly donation revenue – for refusing to obey the mandate.

In Zubik v. Burwell, the Supreme Court sent back to the federal circuit courts all the cases of all the plaintiffs, including the Little Sisters, the Archdiocese of Washington, the pro-life group Priests for Life, and several Christian colleges. The circuit court decisions, which all went against the non-profits, were voided.

The decision came after the Supreme Court, in a rare move in the middle of a case, had ordered both parties to come up with alternative solutions, if possible, of guaranteeing both contraceptive coverage for employees and religious freedom protections for the non-profits.

"Both petitioners and the Government now confirm that such an option is feasible," the court said in its statement.

The Little Sisters and other plaintiffs, in their brief, outlined an acceptable alternative: when setting up their health plan with their insurer, they would express their wish for a health plan without coverage for the contraceptives, sterilizations and abortion-causing drugs. The insurer would take note and offer employees "cost-free contraception coverage" on the side and outside the health plan.

For their part, "the Government has confirmed that the challenged procedures 'for employers with insured plans could be modified to operate in the manner posited in the Court's order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage," the statement read.

Because of the new developments in the case, the court then sent the group cases back to their respective federal courts.

Then on Monday, the Supreme Court sent back two more mandate cases to the circuit courts and voided those decisions after the plaintiffs had asked the court to review the case documents. The plaintiffs included the Michigan Catholic Conference and the Diocese of Nashville in one case decided by the Sixth Circuit Court of Appeals, and the Archdiocese of New York in another case decided by the Second Circuit Court.

The Supreme Court repeated its statement from the Zubik ruling that "nothing" in its decision would prevent the government from ensuring that employees have access to cost-free contraception coverage; also, they could not force the plaintiffs to pay the fines for not complying with the contraception mandate, until the case was ultimately decided.

"Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners' religious exercise while at the same time ensuring that women covered by petitioners' health plans receive full and equal health coverage, including contraceptive coverage," the court stated in the Zubik v. Burwell opinion.

"We anticipate that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them," it said.