WASHINGTON — The Little Sisters of the Poor are on the front lines of the global COVID-19 pandemic and as they focus on caring for the elderly poor who are particularly vulnerable to the virus, they faced a different kind of challenge Wednesday: The Supreme Court held telephone oral arguments in Little Sisters of the Poor v. Pennsylvania, regarding the state’s attempt to block the Trump administration’s religious exemption to the contraceptive mandate in the Affordable Care Act.

Mark Rienzi is president of Becket, a religious liberty advocacy organization that is representing the Little Sisters. Regarding this case, he told reporters on a call following the arguments that he felt it was a “good day” in court for the sisters.

The case began in 2011 when religious groups, including the Little Sisters, objected to the Obama administration’s contraceptive mandate. HHS offered the groups an accommodation that would delegate the contraception coverage to a third party but they objected that the process still left them complicit in the coverage and sued in 2013. In May 2016, the case was remanded to appeals courts with direction from the Supreme Court that the administration and the organizations work out a compromise. 

In 2017, the Trump administration issued a religious and moral exemption to the Affordable Care Act.  But the attorneys general of California and Pennsylvania attempted to block it through an injunction, claiming that the exemption violated the Administrative Procedure Act and that the state had a compelling interest to providing contraceptive coverage. The third and ninth circuit courts subsequently ruled against the sisters and the Supreme Court agreed to once again take up the case in January 2019.

 

The Affordable Care Act

In his call with reporters, Rienzi explained the three main statutes the justices explored in their questioning.

“One of course is the Affordable Care Act,” he said. “There was a lot of discussion between the justices and the parties about the scope of discretion that the Affordable Care Act gives to the federal agencies to decide what preventative services employers must provide.”

“Pennsylvania made clear that they take a narrower view of the authority given by the Affordable Care Act to the government to create exemptions,” he continued. “They take a narrower view not only than the Trump administration … but also they take a narrower view than the Obama administration.”

Justice Samuel Alito questioned Pennsylvania Deputy Attorney Michael Fischer on this point, saying “you say that the Affordable Care Act does not allow the government to make any exceptions to the contraceptive mandate to accommodate religious objections. Now, if that's true, the original exemption for churches, their auxiliaries and conventions of churches, which was established by the prior administration, violated the Affordable Care Act. But you come back and say that was required to comply with a First Amendment church autonomy doctrine.”

Alito asked if that First Amendment church autonomy doctrine extended to a janitor employed by the church and not just church ministers. Fischer replied, “I don’t think it’s necessarily the case that the First Amendment required that the church exemption be as broad as it was. However, given the realities of insurance and the need for ERISA plans to be consistent, the prior administration made a decision that they were going to apply to all employees of churches.”

“ERISA” is the Employee Retirement Income Security Act of 1974, which the Department of Labor’s website states is “a federal law that sets minimum standards for most voluntarily established retirement and health plans in private industry to provide protection for individuals in these plans.”

Rienzi said attorneys for the Little Sisters and the government made the point that the ACA required employers “to provide the preventative services that HRSA [Health Services Resource Administration], a sub-agency of HHS provides for in guidelines” and “when Congress gives it to an agency and says ‘whatever guidelines you support, whatever guidelines you think people should follow,’ that baked within that … is the idea that the agency has some discretion.”

In oral arguments, Noel Francisco, the solicitor general, pointed out that HRSA “has the discretion not to require any contraceptive coverage at all, as this court acknowledged in Hobby Lobby, I think that that plainly encompasses the discretion to require coverage by most employers but not the small number with sincere conscientious objections.”

Francisco also raised the hypothetical of Congress giving the Department of Defense the discretion to come up with a military draft, saying “I think that that would necessarily include the authority for the Department of Defense to craft conscientious objections to the draft precisely because that's the type of thing that governments traditionally consider in that area.”

 

The Administrative Procedure Act

In addition to the questions regarding discretionary authority in the Affordable Care Act, another statute discussed at length was the Administrative Procedure Act. Rienzi said the state’s argument was “that the federal government was not permitted under the APA to use the process it used to give the Little Sisters the religious exemption that it gave them.”

“They said it was an APA violation because the government initially proceeded by an interim final rule without notice and comment,” he explained, “and having done that, even though they took comments after the fact, the rule, according to the states, was still impermissible because of the initial action of using an invalid IFR.”

Rienzi noted that Justice Elena Kagan’s line of questioning regarding the APA, “seemed to be pretty good for the Trump administration and for the religious objector.”

“Justice Kagan was asking questions about both the fact that this seems to be a really common process of doing interim final rules followed by final rules,” he said, “and then in particular the fact that this is also the process by which the contraceptive mandate itself came to be in place. And if the court were to say that it was invalid to have the exemption come through IFR followed by a final rule process, wouldn’t that lead them to also have to get rid of the contraceptive mandate itself?”

Kagan pointed out to Fischer that “the original rule was done in the exact same procedural manner” as the exemption. Fischer replied, “We think the arguments made were much stronger in those cases, and, regardless, to be litigating this question nine years after the fact simply doesn't make a lot of sense.”

 

The Religious Freedom Restoration Act

The third, and most important, statute discussed, according to Rienzi, was the Religious Freedom Restoration Act (RFRA). He explained that the Trump administration argued for the Little Sisters' exemption by saying that RFRA “instructs the federal government and all parts of the federal government that they must avoid imposing substantial burdens on religious exercise unless they can prove that they can satisfy strict scrutiny.”

In this case, the sisters were being asked “to sign forms that would give authorization and permission to other parties to use their health plan to give out contraception and abortion inducing drugs and to pay for sterilizations. The sisters have said all along that they can’t do that, that they understand that to be religiously forbidden.”

Chief Justice John Roberts questioned Paul Clement, an attorney representing the Little Sisters, on this matter and expressed frustration that a compromise had not been reached. He posed a scenario in which “the insurance coverer would not provide the services through the Little Sisters' plan but could provide them directly to the employees,” asking, “why isn't that sort of accommodation sufficient?”

“If the government has some way to provide the contraception services independently of us and our plans, we've never had an objection to that,” Clement replied. “But the government has insisted throughout this whole process that we not just be able to have an opt-out form, an objection form, but that that same form serve as a permission slip to allow the government to track down PPAs [Preferred Provider Arrangements] and others to provide services through our plans. And that's always been the gravamen of our objection.”

Justice Ruth Bader Ginsburg, who participated in oral arguments from the hospital where she was being treated for a gallbladder condition, said that “the glaring feature of what the government has done in expanding this exemption is to toss to the winds entirely Congress's instruction that women need and shall have seamless, no-cost, comprehensive coverage.”

Solicitor General Francisco responded by arguing that “there's nothing in the ACA, as this Court recognized in Hobby Lobby, that requires contraceptive coverage. Rather, it delegated to the agencies the discretion to decide whether or not to cover it in the first place.”

Ginsburg later addressed the same question to Clement saying, “this idea that the balance has to be all for the Little Sisters-type organizations and not at all for the women just seems to me to rub against what is our history of accommodation, of tolerance, of respect for divergent views.”

Clement replied that “Congress itself recognized that tens of millions of employees could be in the same position as employees of the Little Sisters of the Poor even though there's no religious objection there whatsoever” and “the clear teaching of RFRA is that when you're going to give those kind of exceptions to people for secular reasons, then you need to give those kind of exceptions to religious believers.”

“Obamacare has actually had a lot of exemptions for a very long time,” Rienzi noted on the call, “grandfathering for example has been an exemption in the statute right from the beginning and it has covered plans covering tens of millions of people.”

 

Looking Ahead

Rienzi said that with the upcoming 2020 election “there is a danger of too narrow an opinion here not really resolving the issue and leaving it to say, ‘Well this is fine if you have an administration that wants to respect religious liberty which I’m grateful that we have right now but if you’ve got one that chooses not to you’ve got to come back and litigate the whole thing over again.’”

“I guess I’d just say that to the extent that if you listen to the argument you can sense a little frustration from the court that they’re having to deal with it again,” Rienzi concluded. “My suspicion is they fully understand that if they don’t have a clear answer to the RFRA question, that RFRA requires this exemption, that in fact the issue is going to come back and is going to keep recurring. We’ve been at this for almost a decade now.”  

The sisters were unable to rally on the steps of the Supreme Court prior to the arguments as they have in the past, but sisters from the Conference of Major Superiors of Women led a Rosary in front of the building standing six feet apart while the Little Sisters and their residents joined virtually.

As congressmen and religious leaders sent virtual messages of support, Sister Constance Veit, the order’s communications director, said a few words about the case. “For almost a decade, we’ve been in a legal battle for the very soul of our ministry,” she said. “Our lives are dedicated to the elderly poor because we believe in the dignity of human life, every human life and every stage of life from conception until its natural end, and so it would be unthinkable for us that on the one hand we could hold the hand of the dying elderly and on the other hand facilitate the killing of unborn human life. Today we’re asking the Supreme Court to protect us and to finally bring an end to this long, legal battle.”   

Lauretta Brown is the Register’s Washington-based staff writer.