Little Sisters Continue Legal Fight Against HHS Mandate

After being granted temporary relief, the Little Sisters of the Poor and 500 fellow plaintiffs are set to argue their case before a federal appeals court in February.

Mother Patricia Mary, right, and nurse Friary Nguyen visit 99-year-old resident Helen Reichenbach Jan. 2 in her room at the Mullen Home for the Aged, run by Little Sisters of the Poor, in Denver.
Mother Patricia Mary, right, and nurse Friary Nguyen visit 99-year-old resident Helen Reichenbach Jan. 2 in her room at the Mullen Home for the Aged, run by Little Sisters of the Poor, in Denver. (photo: AP photo/Brennan Linsley)

WASHINGTON — Granted a reprieve by the U.S. Supreme Court from having to pay “ruinous” fines, the Little Sisters of the Poor are continuing their fight against the federal government’s contraceptive mandate.

“This is a very encouraging sign,” said Adele Keim, counsel with the Becket Fund for Religious Liberty. The public interest law firm is representing the Little Sisters in a pending class-action federal lawsuit that includes almost 500 other Catholic nonprofit organizations that receive health benefits through the Christian Brothers Employee Benefit Trust and Christian Brothers Services.

On Jan. 24, the Supreme Court granted the Little Sisters and their fellow plaintiffs an injunction, which temporarily shields them from compliance with the contraceptive mandate while they prepare their case before the 10th Circuit Court of Appeals in Denver.

The Affordable Care Act of 2010 authorized the U.S. Department of Health and Human Services to mandate that employer-provided health-insurance plans cover contraceptives, abortifiacient “morning-after pills” and sterilization, without deductibles or co-pays.

Keim said the opening briefs are due Feb. 24 at the 10th Circuit. Last summer, the same federal appeals court overturned a lower-court ruling that initially denied a similar injunction for Hobby Lobby, the Oklahoma-based crafts-store chain that is also fighting the mandate and will argue its case this year before the Supreme Court.

“We are very optimistic of what the outcome will be in the 10th Circuit, which already gave a preliminary injunction in the Hobby Lobby case,” said Carl Scherz, an attorney with Locke Lord, an international law firm that is also representing the plaintiffs, along with the Becket Fund and Kevin Walsh, a law professor at the University of Richmond.


Controversial ‘Self-Certification Form’

However, on Dec. 31, 2013, a 10th Circuit motion panel said it would not grant the Little Sisters an injunction, stating that the Little Sisters had the option of avoiding fines by completing a self-certification form to authorize a third-party administrator to provide health-insurance coverage for contraceptives, abortifacients and sterilization.

The self-certification form — a byproduct of President Barack Obama’s purported accommodation for religious nonprofits — is a central sticking point for the Little Sisters and Christian Brothers.

The class-action lawsuit says the self-certification form itself violates the plaintiffs’ religious freedom by forcing them to cooperate in a process where employees are granted coverage for all birth-control drugs and procedures approved by the U.S. Food and Drug Administration. 

“It is still a violation of their religious liberty if they are made to be complicit in getting someone else to provide that kind of coverage,” said Larry Hansen, an attorney with Locke Lord.

On Dec. 27, a federal district court in Colorado said the Little Sisters and their fellow plaintiffs were exaggerating the requirements of the self-certification form and that their religious-liberty claims were “pure conjecture” that ignored the “factual and legal realities of this case.”

Though initially denying the plaintiffs’ request, the 10th Circuit’s motion panel did not rule on the merits of the Little Sisters’ argument: that the form violates their rights under the Religious Freedom Restoration Act and the First Amendment to the U.S. Constitution, which protects freedom of religion.

The Supreme Court also did not issue an opinion. In their unanimous decision to grant the injunction, the nine justices added that their order “should not be construed as an expression of the court’s views on the merits.”

Advocates of legalized abortion and contraception argue that the Supreme Court’s statement is an indication that the injunction was granted because of bureaucratic technicalities rather than a violation of constitutional rights.

“This is a case about paperwork, not religious liberty,” Cecile Richards, president of Planned Parenthood Federation of America, said in prepared remarks.


Supreme Court Move Gives Hope

However, proponents of the religious-liberty argument were encouraged by the Supreme Court’s decision to grant injunctive relief to the Little Sisters and Christian Brothers.

“It’s important because it shows the Supreme Court has recognized the significant religious liberty and civil rights that are at stake here and have taken steps to protect them,” said Scherz. “The implication is that the Supreme Court is paying close attention to this.”

“This decision to intervene, reached after a full court review, provides welcome relief to the sisters and encouragement to the other plaintiffs who continue to challenge the mandate,” said Michael Warsaw, chairman of the board and chief executive officer of the Eternal Word Television Network, which is also challenging the HHS mandate.

Warsaw, who is also the publisher of the Register, said the fact that organizations like EWTN — which the Becket Fund is also representing in its lawsuit — and the Little Sisters are not deemed “religious enough” to be exempted from the mandate shows “how senseless the government’s rules have become.”

“Instead, we are faced with the prospect of millions of dollars in fines for refusing to cooperate with the government’s mandate,” Warsaw said, adding that, shortly before midnight on New Year’s Eve, EWTN and the state of Alabama filed a petition with the U.S. District Court in Mobile, Ala., seeking a summary judgment in the EWTN lawsuit.

“While the decision of the Supreme Court in the Little Sisters’ case has no direct impact on the current legal challenge of the mandate by EWTN and the state of Alabama, it is very helpful that the court has seen fit to intervene in the matter,” Warsaw said, adding that he remains “hopeful” the courts will provide relief to EWTN from the “unjust government action.”


Facing Crippling Fines

Based on the federal government’s tax formulas, the Becket Fund says the Little Sisters may have had to pay up to $1 million in fines this year for not complying with the HHS mandate. The Catholic nonprofits under the Christian Brothers plan would also have paid more than $400 million in combined penalties in 2014. That works out to about $100 in penalties per day for each employee.

If those ministries closed or discontinued their health coverage, the Christian Brothers Employee Benefit Trust and Christian Brothers Services estimated they could lose as much as $130 million in medical-plan contributions each year, according to court documents.

“These nonprofit ministries — which provide needed social services like educating children, feeding the hungry, caring for the sick and comforting the old and the dying — could not possibly endure such massive daily fines over time, meaning the fines will likely force them to either give up their religious exercise (surely an irreparable harm) or to close under the weight of the fines before their litigation could run its course,” the Becket Fund said in its motion for injunctive relief.

For now, instead of filling out the self-certification form, the Little Sisters have been given permission by the Supreme Court to notify the HHS in writing that they hold themselves out as religious and have religious objections to providing coverage for contraceptive services. Keim, the Becket Fund attorney, said the Little Sisters will notify the federal government of their objections.

“The Little Sisters have been telling HHS for the past year that they are a religious organization with objections to this mandate,” added Keim.


Stage Set for Supreme Court

Even before the Supreme Court’s Jan. 24 order, several lower federal courts had already awarded injunctions in 18 of 19 cases involving religious nonprofits.

“We already know the federal courts overwhelmingly are finding the arguments of the religious nonprofits to be certainly persuasive,” Keim said, adding that judges, in allowing the injunctive relief, have said that the nonprofits are in a strong position to prevail in their cases.

The federal courts have also issued a variety of rulings in the lawsuits involving private for-profit businesses that oppose the HHS mandate on religious-freedom grounds. In March, the Supreme Court will hear arguments in the Hobby Lobby case. The high court is expected to decide that case by this summer.

Scherz, the attorney from Locke Lord, said he would not be surprised if the Supreme Court hears arguments in one of the religious nonprofit cases during its next session.

Register correspondent Brian Fraga writes from Fall River, Massachusetts.