WASHINGTON — In a unanimous May 16 decision, the U.S. Supreme Court has sent back to the lower courts a challenge to the federal contraception mandate raised by the Little Sisters of the Poor.
The lawsuit involves the Department of Health and Human Services’ federal contraception mandate, which requires employers to provide contraception and drugs that can produce abortions in employee health plans. While the government has offered an exemption to many corporations, it has no exemption for the Little Sisters of the Poor, who help run houses to care for the elderly poor.
“The Supreme Court on Monday gave the Obama administration a final chance to work out a compromise with religious groups opposed to the birth-control mandate under the Affordable Care Act,” The Hill reported, adding that “the justices unanimously instructed both parties to find a tweak to the contraceptive mandate to eliminate any faith-based concerns ‘while still ensuring that the affected women receive contraceptive coverage seamlessly.’”
The Becket Fund for Religious Liberty, which filed the lawsuit on behalf of Little Sisters of the Poor, called the ruling an “important win.”
“We are very encouraged by the court’s decision, which is an important win for the Little Sisters. The court has recognized that the government changed its position,” said Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty and lead attorney for the Little Sisters of the Poor.
“It is crucial that the justices unanimously ordered the government not to impose these fines and indicated that the government doesn’t need any notice to figure out what should now be obvious: The Little Sisters respectfully object,” he continued.
Religious charities including the Little Sisters of the Poor had sued the federal government, saying that they were being coerced, under threat of heavy fines, to violate their consciences. They said that despite revisions, the Obama administration’s federal contraception mandate requires them to cooperate in actions they believe to be immoral.
The mandate began as part of the Affordable Care Act, which required coverage for preventative care in employee health plans. The Department of Health and Human Services, in its regulations released after the law was passed, interpreted this to require employer coverage for contraceptives, sterilizations and drugs that can cause abortions.
Churches and their immediate affiliates, like schools and parish groups, were exempt from the mandate, but religious nonprofits, charities and universities were not. Some large corporations were exempt from the mandate because their health plans that existed before the health-care law took effect were “grandfathered” into its regulations.
Heavy fines are the punishment for not complying with the mandate. Many religious institutions object to complying with the mandate, saying they are being forced to violate their consciences by providing coverage for practices they believe are immoral. They are being coerced to cooperate in such acts, they said.
After the mandate was issued, the government offered an “accommodation” to objecting parties: They could notify the government of their religious objection, and it would then direct their insurers to provide the mandated coverage free of charge. The government argued that contraception can be offered without cost because it reduces later costs associated with births and provides “tremendous health benefits” to women.
The Little Sisters and other charities said this “accommodation” still requires them to violate their consciences, because they are effectively acting as “gatekeepers” for the contraception coverage. They also voiced concern that because it was still part of their health plans, they would ultimately end up paying for the coverage they find immoral.
A total of more than 300 plaintiffs have sued to challenge the mandate. In Zubik v. Burwell, the Little Sisters are joined by other plaintiffs, including the Archdiocese of Washington, Bishop David Zubik of Pittsburgh, the pro-life group Priests for Life and several Christian colleges and universities.
The Supreme Court, in a rare move in the middle of a case, ordered both parties to come up with alternative solutions, if possible, of guaranteeing both contraceptive coverage for employees and religious-freedom protections for the non-profits.
“Following oral argument, the court requested supplemental briefing from the parties addressing ‘whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners,’” the court’s statement read.
“Both petitioners and the government now confirm that such an option is feasible.”
The Little Sisters and other plaintiffs, in their brief, outlined an acceptable alternative: When setting up their health plans with their insurers, they would express their wishes for health plans without coverage for the contraceptives, sterilizations and abortion-causing drugs. The insurers would take note and offer employees “cost-free contraception coverage” on the side and outside of the employers health plans.
For their part, “the government has confirmed that the challenged procedures ‘for employers with insured plans could be modified to operate in the manner posited in the court’s order while still ensuring that the affected women ‘receive contraceptive coverage seamlessly, together with the rest of their health coverage,’” the statement read.
Because of the new developments in the case, the court has sent the group cases back to their respective federal courts: the Third, Fifth, 10th and D.C. Circuit Courts of Appeals.
“Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage,’” the court stated.
The Supreme Court did not say if the government’s mandate and “accommodation” violated the Religious Freedom Restoration Act. Under that federal law, passed in 1993, if the government action “substantially burdens” a person’s free exercise of religion, the government must establish that it has a “compelling interest” for the action and that it is using the “least-restrictive means” of furthering that interest.
“In particular, the court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest,” the court stated on Monday, leaving that decision for the lower courts.
In response to the court decision, Cardinal Donald Wuerl of Washington issued the following statement on May 16: “Earlier today, the United States Supreme Court, which currently has eight members, announced that it was vacating the decision of the courts of appeal and remanding the cases for further arguments. This remand was based in part on the government’s confirmation during supplemental briefing following oral arguments that its birth-control mandate regulations could be modified to satisfy the Archdiocese of Washington’s and other religious employers’ objections.
“We are pleased that the court confirms that there is a path forward that recognizes our religious liberty, yet we also recognize that this struggle will continue. We will seek to remain faithful to the teaching of the Church and in a way that builds the common good, which includes continuing our Gospel mission to serve others in education, health care, social services and outreach to the poor and those most in need. We will continue to do that because we are resolute that it is precisely by being true to our Catholic identity in what we proclaim and in what we do that we can continue to help realize a truly good and just society where all enjoy the benefits of peace, prosperity and freedom.”
Michael Warsaw, chairman of the board and Chief Executive Officer of EWTN Global Catholic Network, issued a May 16 statement on the ruling, too:
“Today’s U.S. Supreme Court ruling reversing the decisions of four federal appellate courts on the HHS mandate is a clear victory for EWTN and all of the plaintiffs who have spent the last several years fighting against the government’s attempt to hijack our employer-sponsored health-care plans in order to force us to provide contraception, abortion-inducing drugs and sterilization procedures. The Supreme Court has now said what we have been saying throughout our challenge of the mandate, that the government does indeed have less restrictive means to accomplish its goals without forcing religious organizations like EWTN and the Little Sisters of the Poor to violate our strongly held moral beliefs or face crushing fines. The government itself was forced to admit this as part of its case before the Supreme Court. With regard to EWTN’s own case, today’s ruling by the Supreme Court strikes down several of the key decisions upon which the 11th U.S. Circuit Court of Appeals based its previous ruling against EWTN. While we await further action by the 11th Circuit in the EWTN case, we are even more confident that we will prevail.”
The U.S. bishops also responded to the court news.
Archbishop Joseph Kurtz, president of the U.S. Conference of Catholic Bishops, stated:
“I am encouraged by today's unanimous decision of the Supreme Court. It wipes away the bad decisions that so many of our charitable ministries were appealing, it maintains hope that we might resolve this dispute finally and favorably sometime in the future, and, in the meantime, it prevents the administration from issuing crippling fines against those who object. ...
“In light of this, [the] USCCB will continue its opposition to the HHS mandate in all three branches of government. We are grateful to the Supreme Court for the opportunity to continue that effort. We remain convinced that, as a nation, we do not wish to push people of faith and their ministries out of charitable work – under threat of severe government fines – or leave freedom of religion protected only in private worship.”
Register staff contributed to this report.
For previous coverage: See here.