The Little Sisters of the Poor—an order of nuns who are embroiled in a battle with the Obama administration over the Affordable Care Act — were sitting in the pews at Catholic University last month eagerly anticipating the Pope’s mass when an official told them they had to leave immediately.
Pope Francis had decided to make a surprise visit to their home after the mass, and they needed to rush back and prepare.
It was one stop on the Pope’s whirlwind tour and a Vatican spokesman said later that the visit was meant to be a “sign of support” for the nuns who have filed a lawsuit against the government challenging the Affordable Care Act and a requirement that group health plans provide a full range of contraceptive coverage to women at no cost.
On Friday, as the debate surrounding the scope of religious liberty brews across the country, the Supreme Court will meet behind closed doors and discuss whether to take up the nuns’ challenge. While the government says it has offered non-profits like the Little Sisters an “accommodation” meant to respect their religious objections, the sisters say it’s not good enough.
In all, the justices will consider seven different petitions at their scheduled conference from non-profit groups nationwide who say the mandate that requires what they call “abortifacients and contraceptives” forces them to violate their religious beliefs or pay ruinous fines.
If it takes the case, it would represent the fourth time the Court has heard a challenge concerning Obamacare and the second the contraceptive mandate has come up.
Two years ago, in Burwell v. Hobby Lobby, a 5-4 Court ruled that closely held for-profit companies that objected to providing certain contraceptives could be accommodated.
The Court did not say Friday if it will accept the case, but if it chooses to turn its sights on the nonprofits it could take up any of the seven petitions before it, or combine them. Should it hear the case, a decision would most like come this spring, in the heat of the presidential campaign.
Administration says it has provided accommodations
Solicitor General Don Verrilli argues in legal briefs that in passing the Affordable Care Act, Congress determined that preventive services for women were “critical to improving public health” and that people were more likely to obtain preventive care when they did not have to pay out of pocket.
Verrilli notes the government has exempted houses of worship (such as temples, mosques or churches) from the mandate but it has declined to do so for nonprofit faith based charities, and religiously affiliated educational institutions and hospitals. Instead, those groups are eligible for what the government calls a ” regulatory accommodation,” that aims to balance the religious liberty of employers while at the same ensuring that the employees have the same access to all FDA approved contraceptives as other women.
Under the accommodation, a religious nonprofit organization must first notify the entity that issues its group health plan, or the Department of Health and Human Services that it has a religious objection. After the notification, either the insurance plan or a third-party administrator becomes responsible for providing the birth control coverage directly.
The accommodation varies slightly depending upon the type of insurance, but Verrilli argues that in all cases, “an employer that opts out under the accommodation has no obligation to contract, arrange, pay or refer contraceptive coverage.”
But lawyers for the sisters say the accommodation still forces the nuns to play a role in facilitating contraceptive coverage and thus be morally complicit in what they consider a grave sin.
“To be clear, this so-called ‘accommodation’ is not an exemption,” Paul Clement, a lawyer for the nuns, said in legal briefs, ” but a means by which the non profit can fulfill its statutory obligation to provide coverage.’
The nuns say the government is violating the Religious Freedom Restoration Act (RFRA) a law passed in 1993 that prohibits the government from imposing a substantial burden on religious exercise unless doing so is the least restrictive means of furthering a compelling government interest. They also argue that the government violates the Establishment Clause of the Constitution because it allows an exemption for houses of worship, but only an accommodation for organizations like the Little Sisters of the Poor.
“The Religion Clauses prohibit government from making explicit and deliberate distinctions between different religious organizations without good reason,” Clement wrote.
Gretchen Borchelt, the Vice President for Heath and Reproductive Rights at the National Women’s Law Center says the stakes are high.
“Women stand to lose coverage of birth control – a critical benefit that has done so much to advance women’s health and economic security,” she said.
Lower courts have favored the government
Of the eight circuit courts that have heard the challenge, seven have ruled in favor of the government.
Judge Cornelia Pillard of the U.S. Court of Appeals for the District of Columbia wrote an opinion in favor of the government in a challenge brought by the Roman Catholic Archbishop of Washington. She said that the religious non-profits that opt out are “excused from playing any role in the provision of contraceptive services, and they remain free to condemn contraception in the clearest terms.”
Pillard said that religious objectors have “no RFRA right to be free from the unease, or even anguish, of knowing that third parties are legally privileged or obligated to act in ways their religion abhors.'”
A panel of judges from the Eighth Circuit reached the opposite conclusion, however, holding that “compelling the participation” of the non profits in the accommodation process “by threat of severe monetary penalty” was a substantial burden on their exercise of religion. The Court reasoned that there were other ways the government could provide contraceptives to women who were unable to obtain them under their insurance plan due to their employers’ religious objection such as providing subsidies, reimbursement or tax credits.
The fact that there is a split in the lower courts makes it more likely that the Supreme Court will take up the issue.