Little Sisters face new lawsuit over their HHS mandate exemption

Washington D.C., Nov 24, 2017 / 03:47 am

The Little Sisters of the Poor are returning to court to defend their exemption from the federal contraception mandate, after two states filed lawsuits challenging the exemption.

"No one needs nuns in order to get contraceptives, and no one needs these guys reigniting the last administration's divisive and unnecessary culture war," said Mark Rienzi, senior counsel at Becket Law and lead attorney for the Little Sisters.

The Little Sisters of Poor are religious sisters dedicated to living with and caring for the elderly poor. In recent years, they have been embroiled in a lawsuit challenging the federal contraception mandate, which requires them to offer an employee health plan covering contraception, sterilizations and some drugs that can cause early abortions. Catholic teaching holds contraception and abortion to be gravely immoral.  

Last month, the Trump administration announced changes to the mandate, including a broad religious exemption that offered protection from its demands to the Little Sisters and other objecting religious non-profits.

"The new rule should mean that their lawsuit against the federal government will soon end," said Becket, the religious liberty law firm representing the sisters.

However, the states of California and Pennsylvania are now suing, challenging the Little Sisters' religious exemption.

The HHS contraceptive mandate, issued under the Affordable Care Act, required that cost-free coverage for contraceptives, sterilizations, and some drugs that can cause abortions be included in employer health plans.

The original mandate had only a narrow exemption for houses of worship and their integrated auxiliaries. Following a wave of lawsuits on the grounds of religious liberty, the Obama administration released a "religious freedom accommodation" for faith-based non-profits that were not directly affiliated with a house of worship.

Under the accommodation, these groups could send a form to the government outlining their objection to the mandate, which would trigger a government directive to an insurer or third party administrator to provide the cost-free contraceptive coverage in employee health plans.

However, many groups argued that the accommodation still required them to participate in the provision of products that they believed to be immoral. Furthermore, they argued that, despite the government's insistence that birth control products are free for insurers to provide, the cost of the objectionable products would ultimately be passed on to them in the form of higher premiums.

More than 300 plaintiffs filed lawsuits against the mandate. In 2014, Hobby Lobby, a craft supply retailer owned by a Christian family, won a case against the mandate in a 5-4 Supreme Court decision.

In 2016, a bundle of cases challenging the mandate and its accommodation made its way to the Supreme Court – including the Little Sisters of the Poor, the Archdiocese of Washington, Bishop David Zubik of Pittsburgh, and other Christian colleges and universities.

After oral arguments in the case in March of 2016, the Supreme Court, in a rare move in the middle of a case, directed both the government and the plaintiffs to submit briefs explaining if, and how, a conclusion could be reached providing the contraceptive coverage while at the same time respecting the religious freedom of the non-profits.

Both parties submitted briefs, and in May of 2016, the Court voided the federal circuit court decisions involving the plaintiffs, and sent the cases back to their respective federal courts. The Court directed the lower courts to give all parties time to come to an agreement that satisfied their needs.

In October 2017, the Trump administration announced a modification of the mandate. While the original rule remains in place, a much broader exemption is granted to non-profits and some for-profit companies, if they can demonstrate a religiously-based objection to the mandate's demands.

A moral exemption to the mandate is also permitted, although not for publicly-traded for-profit companies. The moral exemption would protect, for example, secular crisis pregnancy centers, which object to the mandate on moral rather than religious grounds.

The "accommodation" offered to non-profits by the Obama administration is now voluntary. Non-profits can have their insurer or third party administrator offer the coverage for sterilizations, contraceptives, and drugs that can cause abortions, but they do not have to do so under law.