By Matt Hadro
Washington D.C., May 6, 2020 / 11:08 am
During a week in which the Supreme Court heard arguments via telephone for the first time, the case of the Little Sisters of the Poor came back before the justices on Wednesday.
The court decided to hold oral arguments via conference call as Washington, D.C., is under a stay-at-home order and the U.S. Centers for Disease Control (CDC) recommends gatherings of no more than 10 people during the coronavirus pandemic.
Oral arguments in the case of the Little Sisters of the Poor, originally scheduled to be held in-person at the Court on April 29, were rescheduled and held remotely on May 6.
Justices heard from attorneys representing the Trump administration, the Little Sisters, and the state of Pennsylvania, as the nuns were back at the Supreme Court four years after their case against the Obama administration's contraceptive mandate was first considered.
"For nearly a decade, we have been in a battle for the soul of our ministry," said Sister Loraine Marie Maguire, Mother Provincial of the Little Sisters of the Poor, in a telephonic press conference after the arguments.
"We could not comply with the mandate. To do so would undermine our most important belief: that all life is valuable," she said. "We cannot hold the hands of the elderly dying, while at the same time facilitating the ending of unborn life."
The case dates back nearly a decade when, in 2011, the Obama administration finalized rules requiring employers to offer cost-free contraceptives, sterilizations, and emergency birth control in employee health plans under the Affordable Care Act (ACA).
Later, the administration announced an "accommodation" for objecting religious non-profits that involved them notifying the government of their objection to providing the contraceptive coverage; the government would then direct their insurer or third-party plan administrator to provide the coverage.
The Little Sisters and other Catholic groups, including Bishop David Zubik of Pittsburgh, sued in 2013, saying that the accommodation still substantially burdened their free exercise of religion.
Mark Rienzi, president of Becket which represents the sisters, explained on Wednesday why the accommodation was still a "substantial burden" on the nuns' religious mission.
"Signing the piece of paper is what authorizes the government and authorizes other parties to use your plan in a way that violates your religion," he said, and by signing the form stating their objection the sisters were essentially giving a "permission slip" for the provision of contraceptives to employees in their health plan.
In 2016, a divided Supreme Court sent the case back down to lower courts and instructed both the objecting Catholic groups and the Obama administration to come to an agreement upholding both the government's "compelling interest" of offering cost-free contraceptive coverage and the Catholic groups' desire to remain free of objectionable participation in such coverage.
During oral arguments on Wednesday, Chief Justice John Roberts and Justice Stephen Breyer both expressed confusion as to why an accommodation had not been reached in the case.
"I didn't understand the problem at the time of [the first hearing], and I don't think I understand it now," Roberts said. Later on, Breyer echoed his confusion, "I don't understand why this can't be worked out."
Paul Clement, representing the Sisters, responded to Roberts that by filling out the form expressing their religious objection to the government, the nuns were essentially giving a "permission slip" for birth control to be provided to employees. Given the threat of heavy fines if they didn't comply with the accommodation, this put a substantial burden on their religious practice, he said.
There was no mechanism, outside of a religious exemption, to come to an agreement, Clement said, because the requirement of the ACA mandate for "seamless" contraceptive coverage through the Little Sisters' health plans.
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The Trump administration in 2017 offered a religious and a moral exemption to the mandate, but the states of Pennsylvania and California subsequently sued, saying that the administration violated the Administrative Procedure Act in carving out the religious exemptions which they said contradicted the compelling state interest in providing contraceptive coverage.
In 2018, the Supreme Court allowed the Little Sisters to intervene in the cases in California and Pennsylvania; both the Third and Ninth Circuit Courts ruled against them, and in January the Supreme Court agreed to hear the matter.
The states "dragged us back to court to defend our hard-won religious exemption," Sister Loraine said on Wednesday, noting that for seven years, the legal battle over the mandate has "hung over our ministry like a storm cloud."
Clement told the court on Wednesday that there is a lack of injury from the sisters refusal to comply with the mandate, noting that "we have not heard of even a single employee who views this as a problem."
Michael Fischer, chief deputy attorney general for the state of Pennsylvania, said the sisters' health insurance plans were not "being hijacked" by the state, noting that the order is protected by an injunction, and that the state's case was against the Trump administration's religious exemptions which put a cost on the states.
Fischer argued for a more restrictive view of religious exemptions than the Obama administration's original mandate which initially exempted churches and their integrated auxiliaries. Fischer argued that health plans of church ministers could be religiously exempt from the mandate, but not those of church employees like janitors.
Some justices were critical of the religious exemption and the nuns' argument.
Justice Ruth Bader Ginsburg said the Trump administration's religious exemption "tossed to the wind entirely Congress' instructions" that women receive "seamless, no-cost, comprehensive coverage" for contraceptives and sterilizations.
Justice Sonia Sotomayor asked Clement whether an employer could refuse to provide mandatory COVID-19 vaccine coverage if they had a religious objection to vaccination. Clement replied that they could.
