The Supreme Court on Wednesday heard arguments in the Little Sisters of the Poor v. Pennsylvania, the second time the Catholic religious order has been to the court over its opposition to a contraception mandate in Obamacare.
The arguments presented Wednesday dealt with a lawsuit from the states of Pennsylvania and New Jersey pushing back against an executive order from President Trump and a statement from Health and Human Services Secretary Alex Azar, which exempts the religious order, as well as many other faith-based institutions, from participating in the Obamacare contraception mandate.
Attorney Paul Clement, arguing for the Little Sisters of the Poor, said that if the case is decided against them, they will still not offer contraception because it is “inconsistent with their faith.”
“There is nothing they can do to allow them to come into compliance with the mandate,” he said.
Pennsylvania Chief Deputy Attorney General Michael Fischer told the court that while the state does not object to the religious order’s opposition to the mandate, it believes that the Trump administration’s intervention and the HHS exemptions are “too broad” and will result in women losing coverage for services which the Affordable Care Act deemed as essential healthcare. Furthermore, he said, the way in which the Trump administration implemented the exemptions is an example of executive overreach.
Solicitor General Noel Francisco, arguing on behalf of the federal government, said if the court rules that the HHS exemption, determined by the Health Resources and Services Administration, is too broad, then it will be undermining the agency’s authority, when it issued exemptions in the case of churches in the original Obamacare mandate.
Justice Ruth Bader Ginsburg, speaking from a hospital bed, took issue with Francisco’s arguments, saying that the Trump administration has “thrown to the wind” the concerns of women’s healthcare in issuing an exemption that prevents some women from obtaining “seamless, no-cost comprehensive coverage” for contraception.
Ginsburg also criticized Clement’s arguments, saying that giving preference to organizations such as the Little Sisters of the Poor over women at large “rubs against” the history of public accommodations. Ginsburg said that in her understanding of the Religious Freedom Restoration Act, which prevents the government from placing undue burdens on faith organizations, the Little Sisters of the Poor cannot shift their religious beliefs on “the employees who do not share these beliefs” by withholding contraception.
Chief Justice John Roberts, commenting on the long and contentious nature of the case, said that in the compelling arguments for women’s healthcare, as well as the religious freedom of the order, it seemed that “no one wants this to work.”
The Little Sisters of the Poor have been at odds with the federal and state governments since 2011, when they first expressed opposition to the Obama-era contraception mandate. They sued in 2013 after failing to secure an exemption. Their original case, part of a class-action lawsuit filed by the Becket Fund for Religious Liberty, a nonprofit legal group, alleged that the government was forcing them to “abandon their Catholic beliefs.”
Two district courts ruled against the religious order before the Supreme Court accepted their case in 2016 in a consolidated suit. The court did not deliver a ruling, fearing a deadlock, because of the death of Justice Antonin Scalia. Instead, it vacated the decisions of the previous courts and ordered the Little Sisters of the Poor to work out the specifics of its exemptions at the state level.
In 2017, Trump issued an executive order saying the Little Sisters of the Poor was protected from “undue interference from the federal government.” Azar expanded on the executive order in 2018 by exempting religious nonprofit groups from Obamacare’s contraception mandate.
Trump frequently references the case in his speeches to religious groups, using it as an example of his support for religious liberty, as well as a vehicle to attack the Obama administration and the legacy of former Vice President Joe Biden.
