WASHINGTON – A battle between religious objectors and the states of Pennsylvania and New Jersey over mandates to provide contraception-inclusive health care coverage has once again reached the U.S. Supreme Court, where oral arguments took place for more than 90 minutes by telephone on Wednesday.
In one corner, the objectors: The Little Sisters of the Poor Saints Peter and Paul Home, an order of Roman Catholic nuns who dedicate their lives to serving the elderly and underprivileged community. In the other, the attorneys general of both Pennsylvania (Josh Shapiro) and New Jersey (Gurbir Grewal).
At issue are two questions: (1) Whether a litigant who is directly protected by an administrative rule and has been allowed to intervene to defend it lacks standing to appeal a decision invalidating the rule, if the litigant is also protected by an injunction from a different court; and (2) Whether the federal government lawfully exempted religious objectors from the regulatory requirement to provide health plans that include contraceptive coverage.
In 2011, the federal government, under the administration of then-President Barack Obama and the Affordable Care Act, issued the Health & Human Services contraceptive mandate – which required the Little Sisters to provide contraceptive drugs in their health care plans, or else pay millions of dollars in government fines.
The U.S. Supreme Court unanimously removed lower court rulings against the Little Sisters and protected them from the financial penalties in 2016. Then, HHS announced a new rule protecting religious nonprofits, including the Little Sisters.
But several states, including Pennsylvania and California, immediately sued the federal government to take that protection away, forcing the Little Sisters back to court. After a loss in the U.S. Court of Appeals for the Third Circuit, the Little Sisters turned to the nation’s high court for a final decision.
A member of the plaintiff religious order called the case “a battle for the soul of our ministry.”
“We are hopeful that the Court will protect us as it did in 2016, and be eager to be rid of this legal trouble which has hung over our ministry like a storm cloud for nearly a decade,” Mother Loraine Marie Maguire of the Little Sisters of the Poor said.
“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.”
Mark Rienzi, President of the Becket Fund for Religious Liberty and a visiting professor at Harvard Law School, also said the U.S. Supreme Court has found favor with the plaintiffs before and expressed hope that it would once again.
“The Court has ruled in the Little Sisters’ 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. We hope that the Supreme Court ends this litigation once and for all,” Rienzi said.
Arguments took place via telephone for more than 90 minutes on Wednesday before the complement of the Court, between attorney Paul Clement representing the Little Sisters, U.S. Solicitor General Noel Francisco representing the administration of President Donald Trump, and Pennsylvania Chief Deputy Attorney General Michael Fischer representing the states involved.
Francisco said religion-based employers receiving exemptions is required under the Religious Freedom Restoration Act, passed in 1993. The RFRA stops the federal government from burdening the exercise of religion unless it can show that it is using the least onerous means of doing so
But Fischer countered that the Trump Administration violated the Administrative Procedure Act, which frames agency rulemaking, when it devised the new rules. Fischer stated the former guidelines created between religious employers who objected being able to opt out, but still allowed their female employees to receive contraceptive coverage.
The contraceptive health care coverage of approximately 125,000 women rests on the outcome of the case.
AG Shapiro said contraception is medicine and the rule of law was at stake in this case.
“Reproductive rights are on the line, guaranteed contraceptive coverage is on the line and so is rule of law. The government can’t dismantle laws they don’t like and don’t have votes to change,” Shapiro said.
However, Shapiro expressed confidence in his office’s team.
“We have won repeatedly in federal court on this issue,” Shapiro said.
U.S. Supreme Court case 19-431
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com