A case that could impact Catholic and other religious institutions and non-profit organizations in California and throughout the country is now before the U.S. Court of Appeals for the Tenth Circuit in Denver. Oral arguments were heard on Dec. 8, 2014.
The Little Sisters of the Poor, who serve the elderly and dying, is suing the Obama administration over the U.S. Dept. of Health and Human Services contraception mandate under the Affordable Care Act. The mandate requires employer health insurance plans to provide free access to all FDA-approved contraceptives, including abortion-inducing drugs and sterilization – practices that violate the sisters’ religious beliefs.
Last year, the U.S. Supreme Court granted an injunction halting implementation of the mandate against the Little Sisters pending appeal.
The Little Sisters run homes for the elderly and dying in 31 countries, including 30 in the U.S., such as St. Anne’s Home in San Francisco and the Jeanne Jugan Residence in San Pedro. The order has operated in the U.S. for more than a century.
HHS allows an exemption from the mandate for churches and certain church-affiliated entities, but it refuses to classify the Little Sisters as a “religious employer” because their care for the elderly poor of all faiths is not, it says, an “exclusively religious activity.”
The government’s definition of “religious employer” is so narrow, in fact, that it would exclude even the ministry of Jesus Christ, some Catholic leaders have said.
Under an “accommodation” for these “non-exempt” religious organizations, HHS does not require them to provide the contraceptive services in their health care plan but they must sign a form that triggers a third party administrator to do so. If the nuns refuse they will forced to pay heavy penalties that could cripple their ministry.
“The government forces us to either violate our conscience or take millions of dollars that we raise by begging for the care of the elderly poor and instead pay fines to the IRS," said Sr. Loraine Marie Maguire, Mother Provincial of the order.
The suit, Little Sisters of the Poor v. Burwell, charges that the mandate violates the Religious Freedom Restoration Act and the First Amendment Clauses of the U.S. Constitution protecting religious freedom and freedom of speech.
RFRA, passed in 1993 and signed by President Bill Clinton, forbids government from enacting laws that “substantially burden” religious freedom without a “compelling government interest” and only if it has chosen the “least restrictive” means of advancing that interest.
The government claims a compelling interest in women’s increased access to contraceptives. But if this were such a “compelling government interest,” the Little Sisters’ brief asks, why is it that government has exempted so many other employers? Employers who provide “grandfathered” health care plans; those with fewer than 50 employees, who are not required to offer insurance; and certain religious organizations are exempt – affecting over 30 million Americans.
Not only are only certain employers exempt, but only certain types of religious organizations.
“This type of discrimination among religious organizations is impermissible under the Free Exercise and Establishment Clauses, which prohibit the government from making such ‘explicit and deliberate distinctions between different religious organizations,’” the brief states, citing a previous Court decision.
Furthermore, even if it is deemed that free access to birth control is a “compelling government interest,” the HHS mandate is not the “least restrictive” means of achieving that goal.
“The idea that the most powerful government in the world cannot come up with a way to distribute these products without forcing the Little Sisters to participate is ridiculous," said Mark Rienzi, Senior Counsel of the Becket Fund for Religious Liberty and lead attorney for the order.
A key question discussed by the judges during oral arguments was: Since the government says that it cannot compel the third-party administrator of the Little Sisters’ health plan, Christian Brothers Services, to provide the contraceptive services under the separate ERISA law, could it require another insurance provider to do so?
Not “under present regulations,” the government’s attorney, Adam Jed, responded. But as critics point out, regulations can be changed. And Jed acknowledged, once the form is signed, HHS can offer incentives to certain third-party administrators to provide the coverage.
In a related case, in June 2014 the U.S. Supreme Court ruled in favor of Hobby Lobby, which had argued that requiring family-owned corporations to pay for insurance coverage for contraception if the owners object on religious grounds violated RFRA.
The Little Sisters’ case will determine whether the government’s “accommodation” for non-profit organizations with religious objections also violates RFRA.
Separately, in October 2014 the California Catholic Conference filed a complaint with HHS citing federal civil rights violations by the California Department of Managed Health Care resulting in Catholic institutions, including Santa Clara University, Loyola Marymount University and others being forced to purchase health insurance covering all forms of voluntary direct abortion, including late-term and gender selection.
To date, there are currently 91 lawsuits challenging the HHS mandate, according to the Becket Fund. The decision in the Tenth Circuit could come at any time. Depending on the outcome, the Little Sisters’ case could end up in the U.S. Supreme Court.
On four separate occasions in the past 15 months, the Supreme Court has considered the mandate. In all four cases, Rienzi notes, it has ruled in favor of the religious plaintiffs and against the government (Little Sisters of the Poor, Hobby Lobby, Wheaton College, and Notre Dame) and against the government's restrictive view of religious liberty.