The Supreme Court heard oral arguments today in the case the Little Sisters of the Poor and 37 pro-life groups, universities and companies have filed against the HHS mandate, which forces them to pay for abortion-causing drugs in their employee health care plans.
The case, Zubik v. Burwell, involves 37 religious nonprofits such as charities and universities that say the HHS mandate violates their religious beliefs. They say the religious accommodation the Obama administration put together still makes them complicit in covering the abortion-causing drugs.
“Hijacking. It seems to me that’s an accurate description of what the government wants to do,” Chief Justice John Roberts said, agreeing with the petitioners.
With only 8 judges on the Supreme Court, if the high court splits 4-4, then the lower ruling favoring the Little Sisters will stand and the Obama administration would lose its case. But because many of the organizations involved in today’s case had lower court rulings against them, they would be forced to obey the mandate if the Supreme Court ties.
As a USA Today report indicates, Justice Ruth Bader Ginsburg favored the Obama administration’s phony accommodation and said that, for the Little Sisters and other organizations challenging the mandate, “It can’t be all my way.”
“It can’t be all my way,” Justice Ruth Bader Ginsburg said. “There has to be an accommodation, and that’s what the government tried to do.”
On the other side, the court’s conservatives — minus the late Justice Antonin Scalia, who died last month — said the government should not be able to “hijack” the insurance plans of religious charities, schools, universities and hospitals against their moral beliefs.
“It’s a question of who does the paperwork,” Chief Justice John Roberts said. “In one case, it’s an administrative burden. In the other case, it’s a violation of a basic principle of faith.”
Justice Sonia Sotomayor agreed and said said the administration’s arrangement takes into account women who are covered by the affected plans and “have a real need for contraception.”
Meanwhile, according to a Washington Examiner report, Justice Kennedy appeared skeptical about the Obama administration’s accommodation in terms of its ability to protect the religious views of those compelled to follow the mandate:
Perennial swing vote Justice Anthony Kennedy said the government could “hijack” religious nonprofits’ health plans under the accommodation compromise. Kennedy’s skepticism of the government’s argument heightens the possibility of a 4-4 split decision among the justices after the unexpected death of conservative Justice Antonin Scalia last month.
The court’s liberal wing appeared more receptive to the government’s argument that the accommodation compromise, which ensures the nonprofits don’t have to pay for birth control coverage for employees, is sufficient.
But the court’s conservative justices found that the compromise does place a burden, namely that the nonprofits’ health plans can act as a vehicle for providing the birth control coverage.
But a Politico report shows there is some concern about where Kennedy will wind up:
A sharply divided Supreme Court on Wednesday considered whether Obamacare’s birth control coverage requirement violated the rights of religious institutions, with Justice Anthony Kennedy — the likely swing vote — voicing concern about how big a loophole the court might create if it rules for the challengers.
He suggested that large institutions like Catholic universities shouldn’t be able to get out of the employee coverage requirement in the same way that other challengers, such as the Little Sisters of the Poor order of Catholic nuns, perhaps should.
“I just find that a very difficult opinion to write,” Kennedy said.
In the Hobby Lobby ruling, Kennedy sided with the challengers. But he wrote in a solo concurrence that the closely held companies should have an accommodation like the one the religious institutions have.
“There is an existing, recognized, workable and already-implemented framework to provide coverage,” Kennedy wrote, referring to the accommodation for nonprofit religious institutions. “That accommodation equally furthers the government’s interest but does not impinge on the plaintiffs’ religious beliefs.” That has given government allies confidence that Kennedy will side with the Obama administration this time.
But one pro-life advocate who listened to the oral arguments believes Kennedy will ultimately side with the Little Sisters.
Roger Severino, who was inside the Courtroom today to hear oral arguments, said he was very encouraged by the justices’ questions. Particularly, Justice Kennedy asked the government to explain how it wasn’t hijacking the Little Sisters of the Poor’s health care plans.
“I think that the federal government had a hard time making headway,” said Severino. “The Little Sisters of the Poor had the better argument and hopefully a majority of the justices will agree.”
He added: “The best line came from [the Little Sisters of the Poor’s lawyer] Paul Clement, who said this was not about conscientious objection but conscientious collaboration.That’s exactly right because the Obamacare mandate is forcing the Little Sisters of the Poor to violate their deeply held religious beliefs, which isn’t consistent with our laws that protect religious freedom.”
Alliance Defending Freedom Senior Counsel Gregory S. Baylor told LifeNews the court should side against the Obama administration.
“The government shouldn’t be allowed to force religious organizations to choose between providing life-destroying drugs and devices or paying massive, unsustainable penalties. The government has many other ways to make sure women are able to obtain these drugs, but it has chosen the unlawful and unnecessary path of forcing people of faith to participate in acts that violate their deepest convictions,” he said.
Baylor added: “Thousands of businesses and organizations, like Pepsi and Exxon, are already exempt from the administration’s abortion-pill mandate for reasons that have nothing to do with religion, yet the government is targeting people of faith—forcing them to comply with an unjust edict that tears at the very heart of who they are. We hope the justices will agree that this injustice shouldn’t stand.”
Writing at National Review, pro-life attorney David French discussed the key issues in the case:
First, it’s important to understand that the Sisters are not challenging a law passed by Congress. Instead, the contraception mandate is a rule concocted by bureaucrats. When Congress passed Obamacare it intentionally passed the statute with a number of vague directives that the Department of Health and Human Services (HHS) interpreted and expanded through the regulatory rulemaking process. Thus, the Obamacare statute itself does not contain a contraceptive mandate. Instead, it merely requires employers to “provide coverage” for “preventive services” for women, including “preventive care.”
Through the regulatory rulemaking process, the HHS used those provisions of Obamacare to justify the now-famous contraceptive mandate, requiring employer-provided health plans to provide multiple forms of contraceptives — including some that act as abortifacients — to its employees at no cost.
While HHS trumpeted its new rule as a great advance for women’s health, it exempted vast numbers of employers from its requirements — sometimes for mere convenience. It grandfathered existing plans that did not cover contraceptives, exempted small firms, and exempted “religious employers.” Together, these exemptions mean that companies employing tens of millions of employees are not subject to the mandate.
Curiously, however, even as HHS exempted “religious employers,” it defined the term so narrowly that it applied mainly to entities such as churches and synagogues, not to religious schools, hospitals, or charities — entities that are motivated by faith, often require employees to share the organization’s faith commitment, and ordinarily receive much the same level of religious-freedom protection as houses of worship.
HHS still requires the Sisters to participate in the process of providing contraceptives even if that process does not include payment. They’re required to facilitate the provision of abortifacients and other contraceptives by providing the government with ongoing access to updated insurance information. Other religious employers, such as churches, don’t have to participate in the process at all. They don’t file forms. They don’t notify the government. They simply provide health plans in accordance with their religious beliefs.
Moreover, if the Sisters don’t participate in the process, they’re subject to the same kinds of ruinous fines that would apply to any other employer. So, for religious employers, the stakes are high indeed — participate in the Obama administration’s process for providing abortifacients and contraceptives, or be driven out of business.
The Little Sisters of the Poor are asking the nation’s highest court to ensure they do not have to comply with Obamacare’s abortion mandate. The mandate compels religious groups to pay for birth control and drugs that may cause abortions.
Without relief, the Little Sisters would face millions of dollars in IRS fines because they cannot comply with the government’s mandate that they give their employees free access to contraception, sterilization, and abortion-inducing drugs.
Previously, the U.S. Supreme Court temporarily protected the Little Sisters from the mandate. The Little Sisters then went before the Tenth Circuit Court of Appeals in Denver to extend that protection, but a panel of the appeals court ruled against them. Eventually the full appeals court ruled in its favor but the Obama administration appealed.
The Little Sisters of the Poor, a group of Catholic nuns who care for the elderly poor, urged the Supreme Court to protect them from $70 million dollars in government fines for refusing to violate their Catholic faith. This is the second time the Sisters have been forced to ask the Supreme Court for protection from the government’s efforts to make them to provide contraceptives to their employees.
“The Little Sisters spend their lives taking care of the neediest members of our society —that is work our government should applaud, not punish,” said Mark Rienzi, Senior Counsel of the Becket Fund for Religious Liberty. “The Little Sisters should not have to fight their own government to get an exemption it has already given to thousands of other employers, including big companies like Exxon and Pepsi Cola Bottling Company.”
Their Supreme Court brief explains why the government does not need the Little Sisters at all: because it already has many other ways to get contraceptive coverage to those who want it. “Indeed, the government has invested billions of dollars in creating exchanges for the express purpose of making it easy to obtain qualifying insurance when it is not available through an employer. The government cannot explain why those exchanges suffice to advance its goal of getting contraceptive coverage to the tens of millions of [other] people . . . yet are not good enough” for the employees of the Little Sisters.
“As Little Sisters of the Poor, we offer the neediest elderly of every race and religion a home where they are welcomed as Christ. We perform this loving ministry because of our faith and cannot possibly choose between our care for the elderly poor and our faith, and we shouldn’t have to,” said Sr. Loraine Marie Maguire, Mother Provincial of the Little Sisters of the Poor. “All we ask is that our rights not be taken away. The government exempts large corporations, small businesses, and other religious ministries from what they are imposing on us – we just want to keep serving the elderly poor as we have always done for 175 years. We look forward to the Supreme Court hearing our case, and pray for God’s protection of our ministry.”
“It is ridiculous for the federal government to claim, in this day and age, that it can’t figure out how to distribute contraceptives without involving nuns and their health plans.” said Senior Counsel Mark Rienzi.
Previously, the Supreme Court ruled that the Christian-run Hobby Lobby doesn’t have to obey the HHS mandate that is a part of Obamacare that requires businesses to pay for abortion causing drugs in their employee health care plans.
A December 2013 Rasmussen Reports poll shows Americans disagree with forcing companies like Hobby Lobby to obey the mandate.
“Half of voters now oppose a government requirement that employers provide health insurance with free contraceptives for their female employees,” Rasmussen reports.
The poll found: “The latest Rasmussen Reports national telephone survey finds that 38% of Likely U.S. Voters still believe businesses should be required by law to provide health insurance that covers all government-approved contraceptives for women without co-payments or other charges to the patient.
Fifty-one percent (51%) disagree and say employers should not be required to provide health insurance with this type of coverage. Eleven percent (11%) are not sure.”
Another recent poll found 59 percent of Americans disagree with the mandate.