Little Sisters at Supreme Court (Courtesy Becket Fund)
The U.S. Supreme Court on Tuesday took the unusual step of asking both sides of a controversy on which it already has heard oral arguments to provide additional information – specifically on the topic of how the government can “avoid forcing religious women to provide services against their faith.”
“This is an excellent development,” said Mark Rienzi, of the Becket Fund for Religious Liberty, which is representing the Denver-based Little Sisters of the Poor order of nuns.
“Clearly the Supreme Court understood the Sisters’ concern that the government’s current scheme forces them to violate their religion,” he continued. “We look forward to offering alternatives that protect the Little Sisters’ religious liberty while allowing the government to meet its stated goals.”
It was only a week earlier that the court listened to oral arguments in the case brought by the nuns, who are being threatened by the government with $70 million a year in fines for refusing to allow their health insurance program for employees pay for abortifacients as Obamacare requires.
They also refuse to sign over to the government authority to intervene in that segment of their healthcare program, arguing that to authorize such actions is the same as doing them.
In those oral arguments, the White House insisted it can force an order of Catholic nuns to violate their faith and provide access to abortion pills through their health-insurance program for employees of retirement centers.
The two sides appeared to be arguing different cases.
The nuns argue that if the government wants to deliver abortion pills to Americans, it has many ways to do so without involving them at all.
Federal attorneys, however, claimed that the nuns, by declining to sign over the authority for some parts of their health-care plan for employees, are insisting that the government not provide the abortion-causing drugs.
The Becket Fund said at the time the justices “pressed the government with hard questions on why it is trying to force the sisters to violate their religious beliefs when it has chosen to exempt so many other employers from the mandate.”
Justice Ruth Ginsburg said “no one doubts for a moment” the sincerity of the Little Sisters’ beliefs.
Other justices, the Becket Fund said, expressed concern the government was “hijacking” the Little Sisters’ health plan and making them “subsidiz[e] conduct which they believe to be immoral.”
“Yet,” the Becket Fund said, “the government specifically stated that it not only believes it can force its scheme on the Little Sisters, but also on churches and other houses of worship – making them help provide ‘seamless’ coverage for services like the week-after pill.”
In an announcement on Tuesday, Becket Fund officials said the Supreme Court had asked both the Little Sisters and the government to file additional briefs by next month.
They are to “discuss alternative ways to avoid forcing religious women to provide services against their faith.”
Lawyers with the Alliance Defending Freedom also have been involved in the fight.
Senior Counsel David Cortman said the court wants “supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.”
He said, “The government is forcing our clients to offer access to abortion-inducing drugs through their insurance plans. That is no accommodation. The government has many other ways to make sure women may access these drugs, but it has chosen the unjust, unlawful, and unnecessary path of forcing people of faith to participate in acts that violate their deepest convictions. There is an easy solution: The government can offer these services to women who want them without forcing Christian schools, nuns, and priests to abandon their belief that life is sacred. We will confer with our clients to determine a response to the Supreme Court’s request.”
The nuns, whose order is 175 years old, serve the elderly poor through their worldwide retirement centers. The Obama administration is forcing them to subscribe to the abortion mandate, even though it previously has exempted major corporations such as Exxon, Pepsi and Chevron.
The Little Sisters already have argued publicly that the solution isn’t complicated.
“There is a simple solution that addresses the Little Sisters’ moral concern and the government’s stated goal: offer these services as an add-on through ACA’s healthcare exchange like dental insurance and other add-ons. That is what the exchanges were created to do, and this would provide access to all women in America (i.e., those in religious plans and secular ones HHS has already exempted). This is a much better solution than continuing to try to force only religious groups with an objection to these services to offer them,” they explain on a website dedicated to their defense.
Rienzi said at the time of the oral arguments that the government can use procedures “as easy to use as shopping on Amazon or Kayak,” to deliver abortion drugs if it chooses.
The sisters are the lead plaintiffs in a Supreme Court case that incorporated several related cases challenging Obamacare’s abortion-pill mandate.
According to NBC News, the court appeared headed for a 4-4 tie, a scenario on which WND reported earlier.
The arguments consolidated cases from the Third, Fifth, 10th, and D.C. circuits, and if the vote ends up 4-4, due to the absence of the late Justice Antonin Scalia, the lower-court rulings, most of which favored the administration, will stand. In case of a tie, three of the decisions would favor the government, and the fourth would not, leaving a conflict among the circuits.
NBC noted the White House has exempted churches but has refused to exempt other nonprofit groups like the nuns.
A recent filing by the nuns charged the White House believes it can make anyone, including churches, pay for abortion.
Regarding the exemption for churches, the brief explained: “The government insists that it does so as a matter of administrative grace and ‘special solicitude’ for churches, and that nothing in RFRA requires the exemption. Thus, in the government’s view, it could eliminate the exemption for churches tomorrow. That is astonishing enough, but it fails to grapple with the reality that by granting the exemption the government has already conceded that it does not have a compelling interest in demanding compliance from religious employers who are more likely to hire people who share their religious objections.
“But the government has no more compelling interest in demanding compliance from petitioners, who share the same statutory entitlement to hire people who share their own faith as the exempted employers,” the brief said. “Nor can the government escape the reality that the mandate’s secular exemptions and the government’s own concessions regarding them doom its least-restrictive means defense. The government claims that asking whatever subset of petitioners’ employees who actually want contraceptive coverage to obtain it through an exchange would ‘inflict tangible injury’ that cannot be tolerated. But the government itself champions the exchanges not a dozen pages earlier in its brief as one of several acceptable paths through which the tens of millions of employees whose employers are already exempt can obtain contraceptive coverage.”
At issue is whether the Obama White House can demand the nuns pay for abortions even though the federal Religious Freedom Restoration Act appears to forbid it.
Plaintiffs lawyers argued the need for the demand on the nuns is not compelling – a requirement of the RFRA for the government to impose a rights violations – because about one-third of the country already is exempted.
Solicitor General Donald Verrelli argued on behalf of Obamacare that the nuns want to stop the government from providing the abortion pills, but the nuns said nothing’s further from the truth: They just cannot, because of their faith, be involved, and that includes the government’s solution of signing over authority to do it.
“We don’t understand why the government is doing this when there is an easy solution that doesn’t involve us – it can provide these services on the exchanges,” said Sister Loraine Marie Maguire, mother provincial for the Little Sisters of the Poor, in a statement made outside the court.
“It’s also hard to understand why the government is doing this when one-third of all Americans aren’t even covered by this mandate, and … yet the government threatens us with fines of $70 million per year if we don’t comply. … All we ask, is that we can continue to do this work.”
A decision is expected in June.
Other cases to be affected by the decision include Christian Brothers Services, Christian Brothers Employee Benefit Trust, Houston Baptist and East Texas Baptist Universities, Reaching Souls International, Truett-McConnell College, GuideStone Financial Services of the Southern Baptist Convention, Geneva College, Southern Nazarene University, the Roman Catholic Archbishop of Washington and the Most Reverend David A. Zubik.
A friend-of-the-court brief from the Thomas More Law Center said if the appeal is lost, the government “becomes the head of every religious denomination in the country by its assumed authority to determine what is in fact a sin.”
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