DENVER — Just a few months after the U.S. Supreme Court ruled in favor of Hobby Lobby, in a landmark religious-freedom case, the Little Sisters of the Poor’s lawsuit against the Health and Human Services’ contraceptive mandate moved to the 10th Circuit Court of Appeals.

On Dec. 8, the Denver-based panel heard oral arguments for Little Sisters of the Poor v. Burwell, another free-exercise case that could later be decided by the high court in 2015. And after the exchange between the judges and attorneys for both sides in the case, Mother Loraine Marie Maguire, provincial of the Little Sisters, issued a statement that criticized the government’s efforts to compel the order to violate its religious beliefs or pay massive penalties.

“The government forces us to either violate our consciences or take millions of dollars that we raise by begging for the care of the elderly poor and instead pay fines to the IRS,” Mother Loraine stated.

“We are simply asking to carry on our mission to serve the elderly poor as we have always done for 175 years.”

 

More Complex Test

But while Hobby Lobby successfully argued that the HHS mandate’s narrow exemption sought to force the for-profit company to violate its religious beliefs by facilitating coverage of abortifacient drugs, the Little Sisters face a more challenging test at the 10th Circuit.

Like many religious plaintiffs, they must show that the government’s interim final rule, or accommodation — which does not require the Little Sisters to directly approve or pay for the mandated services — still violates their rights, as protected under the federal Religious Freedom Restoration Act (RFRA).

RFRA directs government not to enact laws that “substantially burden” religious freedom without a “compelling state interest.” If that test has been met, the government must choose the “least restrictive” means of advancing its interest.

The interim final rule directs the religious order to write to HHS to state its objection to the mandate and outline plan details. The agency would then pay a third-party administrator (TPA) to offer contraceptives, sterilization and abortion-inducing drugs to the Little Sisters’ employees. Many religious plaintiffs have rejected the accommodation, as well as a previous iteration that required them to fill out an insurance form, which would trigger coverage by their insurance carriers or a TPA.

The government has argued that the required letter does not constitute a “substantial burden” to the Little Sisters’ religious exercise, as established by RFRA, and three circuit courts have agreed with that stance, ruling against legal challenges filed by the Archdiocese of Washington, Priests for Life and the University of Notre Dame, among other plaintiffs.

 

‘Substantial’ Issue

“I do think that the key issue is going to be ‘substantial burden,’” Gerard Bradley, a constitutional scholar at the University of Notre Dame Law School, told the Register, and he expressed his view that “the new form of accommodation (sending a letter) is not morally different than the old.”

Gregory Baylor, senior counsel for the Alliance Defending Freedom, who represented other HHS plaintiffs before the 10th Circuit on Dec. 8, expressed similar concerns about the accommodation and whether it might weaken free-exercise arguments against the HHS mandate.

“In three other circuit decisions, the existence of the accommodation caused those plaintiffs to lose,” Baylor told the Register.

“It is obviously the basis on which the court could go the wrong way,” said Baylor, though he strongly disagreed with those circuit-court rulings.

However, there is an additional wrinkle in the Little Sisters’ case. Like some other religious nonprofits, their employee insurance is provided by the Christian Brothers’ “church plan,” and so, under federal law, the government cannot force it to comply with the mandate.

Thus, during the oral arguments before the 10th Circuit, Judge Bobby Baldock pressed the Little Sisters’ attorney, Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty, to explain how the accommodation met the high threshold established by RFRA. The Becket Fund, a public interest group, also represents the Eternal Word Television Network in its legal challenge to the HHS mandate. The Register is a service of EWTN.

“They have a religious exercise, which tells them, ‘Do not sign forms; do not … create obligations for others to give out contraceptives,’” Rienzi replied. He described the accommodation as “a moving target” and predicted that HHS would continue to look for a way to modify the rules and use the Little Sisters’ health plan to facilitate coverage of illicit services.

 

Temporary Injunction

On Dec. 31, 2013, the U.S. Supreme Court gave the Little Sisters a temporary injunction, after a district court ruled against them and they faced a looming deadline for compliance with the mandate. At that time, the high court ruled that the Little Sisters did not need to sign the insurance form and could simply write to HHS to confirm their religious objections.

A judge on the panel asked Rienzi to explain why the Little Sisters had agreed to write the letter to HHS but now refused to comply with the latest iteration of the accommodation.

The Becket Fund lawyer explained that the letter, as now understood by the government, served the same purpose as the insurance form Mother Loraine had previously refused to fill out because it would trigger coverage of the mandated services.

“The government said expressly … that the effect of the letter to HHS is the same as filling out the form,” Rienzi said. He charged that the interim final rule served a larger and more questionable purpose than simply providing an “orderly way” to identify objecting employers — as the government had asserted.

“If that is what they needed, they would have stopped last January,” he concluded, noting that the litigation continued after the Little Sisters confirmed their opposition.

 

Weighing the Pressure

But other judges on the panel also questioned whether the interim final rule constituted a substantial burden on the Little Sisters’ religious exercise, and Rienzi responded that their position adheres to “this circuit’s precedent,” which found that several plaintiffs — including Hobby Lobby — had faced a “substantial burden” in their religious exercise.

Likewise, Rienzi asked the panel to weigh “the magnitude of the pressure imposed on [Mother Loraine] to violate her religious beliefs.”

But the Obama administration’s lawyer pushed back when he defended the administration’s rulemaking. He asserted that the Little Sisters’ legal argument was too “broad” and that the interim final rule did not constitute a “substantial burden” on the order’s religious exercise. Still, he also suggested that the government would continue to look for ways to pay a third-party administrator — if not the Christian Brothers, then possibly another TPA, Express Script — to provide the services.

That admission prompted Rienzi to remind the judges that the very reason why the government had not yet taken such action was because it needed the Little Sisters to provide the document that would trigger further steps to secure the mandated coverage for the order’s employees.

At the close of the oral arguments, Rienzi reminded the panel that the Obama administration had exempted many churches and that action implicitly confirmed that the interim final rule met RFRA’s demanding test.

“The government knows this is a substantial burden on religion, and here is how you know they know: They have exempted churches from … the exact same requirements,” he said.

“If Mother Loraine simply walks down the block and gives the keys to the bishops, the bishops could run this nursing home, and they would not have to comply with any of this.”

“That makes no sense,” Rienzi concluded. “The government has no business having that position.”