This week, the Supreme Court will hear a series of oral arguments in a number of cases via telephone, due to the coronavirus outbreak. One of the cases on the docket, to be heard tomorrow morning, is Little Sisters of the Poor v. Pennsylvania, the latest iteration in a series of cases considering whether religious groups are exempt from Obamacare’s contraceptive mandate.
In the past, the Supreme Court has ruled unanimously in support of the Little Sisters — a charitable order of Catholic nuns that cares for the elderly poor — deciding that it would be a violation of religious freedom if the group were forced to comply with the Health and Human Services mandate, which requires that employers cover contraceptives and abortion-inducing drugs in health-care plans. Such drugs violate Catholic teaching.
In an effort to protect religious groups such as the Little Sisters — along with religious business-owners such as the Green family, which owns craft store Hobby Lobby, the subject of another Supreme Court case on the subject — the Trump administration in 2018 expanded conscience protections for nonprofits with religious or moral objections to the mandate.
Even so, the Little Sisters have been forced back to court, as progressive states have sued the federal government over the rule and continued attempting to force all employers, including religious nonprofits, to cover birth control and abortifacients. Here’s how Ed Whelan explained the pending case in a recent post on Bench Memos:
The Trump administration fashioned a broad and acceptable accommodation of religious objections to the mandate, but attorneys general from Pennsylvania and New Jersey refused to accept this regulatory accommodation. They ran to court and obtained something extraordinary — a nationwide injunction against the new rule. Their astonishing claim: The federal government is somehow powerless to guard against its own encroachment on religious freedom.
The Little Sisters have refused to back down, because, serving elderly poor is part of their calling as Catholics. Catholics faithful to the teaching of the Catholic Church. So, they’re back at the Supreme Court.
Little Sisters of the Poor v. Pennsylvania is a consolidation of those two cases, brought by the attorneys general in Pennsylvania and New Jersey against the Trump administration’s rule. A recent Wall Street Journal editorial on the subject offers some helpful context:
In 2014 the Justices held 5-4 that the contraception mandate, as applied to Hobby Lobby and closely held businesses, could not be squared with RFRA. The government “has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion,” the Court said in Burwell v. Hobby Lobby. As one alternative, the ruling suggested that the feds could “assume the cost” themselves. This analysis still holds.
Amicus briefs from groups like Planned Parenthood say women would be harmed if their bosses—who might or might not be nuns—can object to paying for contraceptives. But in 2017 the Health and Human Services Department estimated that the exemptions would not apply to more than 99.9% of women. Hobby Lobby’s critics in 2014 advanced alarming theories about whether, for example, an employer who was a Jehovah’s Witness could decline to pay for blood transfusions. Six years later, where is that parade of horribles?
During earlier rounds of this latest case, lawyers for Pennsylvania admitted that the state already has several government programs to provide free or low-cost contraceptives. The state has failed to identify a single person who it alleges will lose access to birth control because of the Trump administration’s rule. And the state never challenged the Obama administration over exemptions granted to secular corporations, which covered millions more people than the religious exemption.
Pennsylvania’s true objective — and that of every state government seeking to impede these religious exemptions — is not to guarantee that women can access contraception, which is readily available and far easier to finance than many kinds of necessary medical care.
These lawsuits seek with pseudo-religious fervor to punish believers and drive conscience from the public square. Their aim is to uniformly enforce the progressive creed that contraception is health care — and, what’s more, that subsidized contraception is a woman’s right. At the root of these lawsuits is the sinister belief that contraception, funded by one’s employer regardless and guaranteed by the state, is a requirement of freedom. It is little surprise that such a worldview seeks to trample on the rights of those with religious or moral beliefs that contradict this secular dogma.