By Matt Hadro
In a unanimous decision, the Supreme Court sent the Little Sisters of the Poor HHS mandate case back to the lower courts on Monday, in light of new developments in the case.
“We are very encouraged by the Court’s decision, which is an important win for the Little Sisters. The Court has recognized that the government changed its position,” said Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty and lead attorney for the Little Sisters of the Poor.
“It is crucial that the Justices unanimously ordered the government not to impose these fines and indicated that the government doesn’t need any notice to figure out what should now be obvious – the Little Sisters respectfully object,” he continued.
Religious charities including the Little Sisters of the Poor had sued the federal government saying that they were being coerced, under threat of heavy fines, to violate their consciences. They said that despite revisions, the Obama administration’s federal contraception mandate requires them to cooperate in actions they believe to be immoral.
The mandate began as part of the Affordable Care Act, which required coverage for preventative care in employee health plans. The Department of Health and Human Services, in its regulations released after the law was passed, interpreted this to require employer coverage for contraceptives, sterilizations, and drugs that can cause abortions.
Churches and their immediate affiliates, like schools and parish groups, were exempt from the mandate but religious non-profits, charities, and universities were not. Some large corporations were exempt from the mandate because their health plans that existed before the health care law were “grandfathered” into its regulations.
Heavy fines are the punishment for not complying with the mandate. Many religious institutions objected to complying with the mandate, saying they were being forced to violate their consciences by providing coverage for practices they believed were immoral. They were being coerced to cooperate in such acts, they said.
After the mandate was issued, the government offered an “accommodation” to objecting parties – they could notify the government of their religious objection, and it would then direct their insurer to provide the mandated coverage free-of-charge. The government argued that contraception can be offered without cost because it reduces later costs associated with births and provides “tremendous health benefits” to women.
The Little Sisters and other charities said this “accommodation” still required them to violate their consciences, because they were effectively acting as “gatekeepers” for the contraception coverage. They also voiced concern that because it was still part of their health plan, they would ultimately end up paying for the coverage they found immoral.
A total of more than 300 plaintiffs have sued to challenge the mandate. In the case currently before the court, Zubik v. Burwell, the Little Sisters are joined by other plaintiffs including the Archdiocese of Washington, Bishop David Zubik of Pittsburgh, the pro-life group Priests for Life, and several Christian colleges and universities.
The Supreme Court, in a rare move in the middle of a case, had ordered both parties to come up with alternative solutions, if possible, of guaranteeing both contraceptive coverage for employees and religious freedom protections for the non-profits.
“Following oral argument, the Court requested supplemental briefing from the parties addressing ‘whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners’,” the court’s statement read.
“Both petitioners and the Government now confirm that such an option is feasible.”
The Little Sisters and other plaintiffs, in their brief, outlined an acceptable alternative: when setting up their health plan with their insurer, they would express their wish for a health plan without coverage for the contraceptives, sterilizations and abortion-causing drugs. The insurer would take note and offer employees “cost-free contraception coverage” on the side and outside the health plan.
For their part, “the Government has confirmed that the challenged procedures ‘for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage,” the statement read.
Because of the new developments in the case, the court then sent the group cases back to their respective federal courts – the Third, Fifth, Tenth, and D.C. Circuit Courts of Appeals.
“Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans “receive full and equal health coverage, including contraceptive coverage,” the court stated.
The Supreme Court did not say if the government’s mandate and “accommodation” violated the Religious Freedom Restoration Act. Under that federal law passed in 1993, if the government action “substantially burdens” a person’s free exercise of religion, the government must establish that it has a “compelling interest” for the action and that it is using the “least-restrictive means” of furthering that interest.
“In particular, the Court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest,” the court stated, leaving that decision for the lower courts.