WASHINGTON — The Little Sisters of the Poor were just weeks away from scheduled oral arguments before the U.S. Supreme Court when the death of Justice Antonin Scalia sent shockwaves through Washington — and stirred doubts about a legal victory for the religious order.

Scalia played a key role in the conservative wing of the Supreme Court and, in 2014, helped secure a 5-4 decision in favor of Hobby Lobby, a Christian-owned craft-store chain that sought an exemption from the Health and Human Services’ contraceptive mandate.

But the late justice’s seat will not be filled soon, as Senate Majority Leader Mitch McConnell, R-Ky., has vowed to hold off on confirmation hearings until a new president is in the White House and submits a nominee.

So what will the unexpected vacancy on the high court mean for the Little Sisters and for another high-profile abortion case?

When that question was put the day after Justice Scalia’s death to Douglas Laycock, an authority on religious-freedom issues at the University of Virginia’s law school, he offered a stark prediction.

The Little Sisters “lost this case yesterday morning,” contended Laycock.

 

Taking a Dim View

In Laycock’s view, the court’s split decision in Hobby Lobby v. Burwell does not bode well for the religious congregation. He noted that the Little Sisters had already won a limited reprieve from the White House, which said a third party could provide the mandated health services to the order’s employees. In contrast, Hobby Lobby received no kind of accommodation from the government.

“So the four dissents in Hobby Lobby are sure votes for the government,” Laycock argued. “That means the best the Little Sisters can hope for now is a 4-4 affirmance without opinion, leaving in place all the opinions [in the lower courts], in which the religious organizations lost.”

In other words, when a case results in a deadlocked 4-4 decision, the justices can kick the case back to a lower court and let its ruling stand.

But the high court can also consider setting the case aside for re-argument after there is a full complement of nine justices.

The Little Sisters of the Poor Home for the Aged v. Burwell and four other lawsuits, including those filed by the Archdiocese of Washington, Bishop David Zubik of Pittsburgh and Priests for Life, have been consolidated into a single case, Zubik v. Burwell. Paul Clement, a former U.S. solicitor general in the George W. Bush administration, will serve as their advocate in oral arguments on March 23.

Laycock also noted another development potentially related to the Little Sisters’ case: The 8th Circuit has ruled in favor of a different group of religious plaintiffs opposing the HHS mandate. So when the high court “is back up to nine justices, the Supreme Court would take another case and finally resolve the issue,” he predicted. “And if the religious organizations in that case won, then all the organizations that lost here could file new cases or move to reopen their old cases.”

 

Compelling Case

That said, several legal specialists challenged Laycock’s suggestion that liberal justices would be less sympathetic to the Little Sisters’ case because the order had already secured an accommodation. In their view, the free-exercise claims put forward by a religious order dedicated to serving the elderly poor would be even more compelling.

“I don’t agree that it’s ‘much harder’ for the Little Sisters to draw support from the court’s liberal justices,” said Ed Whelan, a constitutional scholar who blogs on “Bench Memos” for National Review Online and once clerked for Scalia.

“We expect to win,” added Mark Rienzi, the Little Sisters’ lawyer from the Becket Fund, a public interest group that also represents EWTN in its separate lawsuit against the HHS mandate. The Register is a service of EWTN.

(In a 2-1 decision delivered Feb. 18, the 11th Circuit U.S. Court of Appeals ruled against EWTN’s lawsuit, but left in place an injunction protecting EWTN from the mandate pending the Supreme Court’s decision in the Little Sisters’ case. See story on page 2.)

“The Hobby Lobby decision was 5-4, but this is the Little Sisters of the Poor — it is not a ‘business,’” said Rienzi, in a reference to objections raised by some justices, who contended that a for-profit company like Hobby Lobby had no free-exercise rights.

The Little Sisters and many other religious nonprofits have fought in the courts for a full exemption from the HHS mandate, which requires most private employers to provide cost-free contraception, abortion-inducing drugs and surgical sterilization in their employee health plans.

The plaintiffs argue that the mandate’s narrow exemption violates their religious freedom as guaranteed under the Religious Freedom Restoration Act. The federal law states that the government should not “substantially burden” religious freedom without a “compelling state interest.” Once that high standard has been met, the government must adopt the least restrictive means of advancing its interest.

Since the administration first approved its initial accommodation in 2012, the White House has agreed to several iterations, including the present requirement, which directs the plaintiffs to confirm their objections to the mandate in writing.

 

Hijacked Health Plan

Laycock predicts that the liberal justices will deem this accommodation to be reasonable. However, the Little Sisters’ lawyers argue that the final accommodation still permits the government to hijack the order’s health plan to provide morally objectionable services.

Indeed, Rienzi predicted that the administration would find it tough to explain why the Little Sisters’ employees could not receive these mandated services through one of the newly established health-insurance exchanges, authorized under Obamacare.

But what if Douglas Laycock is right and Zubik v. Burwell results in a 4-4 decision?

“The court can issue a one-line order that simply affirms the [decision of the lower] court and doesn’t set legal precedent,” he said.

Further, since the plaintiffs are only seeking a preliminary injunction, at present, they could come back to the court at a later date.

“The Little Sisters have not actually litigated their case to conclusion. They asked for a preliminary injunction and were turned down,” said Rienzi.

The second possibility, said Rienzi, is that “the court will order re-argument in the case” after Justice Scalia’s seat is filled.

“We think we ought to argue this again with a full complement of justices,” he said, but either approach “lets you live to another day.”

In part, the Little Sisters sought a preliminary injunction from the court to avoid massive financial penalties.

But the first scenario — the immediate return to the lower court — could come with a high price, in the form of such costs.

Rienzi did not introduce this possibility. But he acknowledged in his interview with the Register that the religious order could be faced with a daunting choice: Agree to the government accommodation or pay massive fines.

 

Texas Abortion Case

Legal authorities concerned about other cases on the Supreme Court’s docket agree that it is a difficult and complex moment for court watchers.

“Everyone now is vote counting on the count,” said Casey Mattox, senior counsel for the Alliance Defending Freedom, which has represented a number of HHS plaintiffs and has also filed an amicus brief in a high-profile abortion case, Whole Woman’s Health v. Cole, before the court this term. In that case, abortion businesses in Texas have challenged a state law that imposes restrictions on their services and has led to the reported closures of a large number of abortion facilities. The 5th Circuit upheld the law.

“A 4-4 split in the court would leave in place the 5th Circuit Court of Appeals’ ruling that upheld these provisions,” noted NPR.

“Ilyse Hogue of NARAL Pro-Choice America says that would shut down a number of clinics that perform abortion.”

Though many legal specialists predict the case will result in a deadlocked decision, the high court will still hear the case.

“The oral argument will take place on March 2, and the court will hear the case,” said Mattox.

“It will be up to the court whether it will issue an opinion or hold it over and hear it again in the fall,” he said.

“It is rare to call for re-argument, but they re-argued the Roe v. Wade case, so there is recent precedent for that.” In that landmark case, which legalized abortion nationally, the Supreme Court first heard oral arguments in 1971 but later agreed the case should be re-argued to allow two newly appointed justices to participate in the final decision in 1973.

But the impact of Justice Scalia’s death on the cases now before the court is not the only, or perhaps even the primary, concern of his many admirers. The larger question is what kind of jurist will fill his seat? 

“There is a reason Republican senators are so adamant in their refusal to let President Obama appoint a successor to Justice Antonin Scalia, a towering figure in conservative jurisprudence,” noted a Feb. 18 New York Times story, which predicted that a liberal justice would help overturn the Hobby Lobby decision and defend abortion rights.

“An Obama appointment would be the most consequential ideological shift on the court since 1991, creating a liberal majority that would almost certainly reshape American law and American life.”

Meanwhile, Casey Mattox is still hopeful that the Texas abortion law will remain on the books. But he expressed a measure of sadness that the death of Scalia had ignited a major political battle in Washington.

“Justice Scalia would have said, ‘The Constitution does not change because I am no longer on the court.’ But that is where we are, and we have to assess what his absence means for the court.”