Catholic Nuns Battle Contraceptive Mandate in Supreme Court

May 6, 2020 Updated: May 6, 2020

The Trump administration told the Supreme Court on May 6 that an exemption given to religious organizations allowing them not to offer contraceptive coverage should be upheld.

Under the Affordable Care Act, also known as Obamacare, most employers have to make cost-free contraceptives available. Churches were exempted.

Oral arguments took place telephonically at the Supreme Court in the cases cited as Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania, which were consolidated and heard together. Although the court scheduled one hour for the hearing, it lasted about an hour and 40 minutes.

Justice Ruth Bader Ginsburg, who turned 87 in March, participated in the hearing from a hospital where, according to a court official, she has been receiving “non-surgical treatment for acute cholecystitis, a benign gallbladder condition.”

The Little Sisters of the Poor, a religious order and charity that operates facilities nationwide, describes itself on its website as “an international congregation of Roman Catholic women … founded in 1839 by Saint Jeanne Jugan … [who] serve the elderly poor in over 30 countries around the world.”

The 2011 Obama-era contraception mandate has spurred more than 100 lawsuits from private individuals, religious groups, state governments, and businesses that objected to it on religious grounds. In October 2017, the Trump administration issued a regulation exempting religious groups from complying with the Obamacare mandate.

The government said it had been wrong to try to compel the Little Sisters and others to provide services such as the morning-after pill in their health plans because doing so violated their religious beliefs.

President Donald Trump signed Executive Order 13798 in May 2017, taking steps to protect Americans’ fundamental rights of conscience and religious liberty.

EO 13798 directs that all “executive departments and agencies … to the greatest extent practicable and to the extent permitted by law, respect, and protect the freedom of persons and organizations to engage in religious and political speech.”

The Little Sisters and other religious organizations don’t want to have to cover birth control. The Trump administration exempted them from the mandate, but last year, the 3rd Circuit Court of Appeals upheld an injunction blocking the exemption.

Pennsylvania, which doesn’t have a state-level contraceptive mandate, sued the Trump administration to take away the religious exemption, noting it already has many of its own government programs that provide contraceptives to women who seek them. Pennsylvania’s position is that the Little Sisters have to comply with the federal mandate or pay tens of millions of dollars in fines.

Texas and 15 other states filed a friend-of-the-court brief in support of the Little Sisters, as did 92 Republican lawmakers, including U.S. Sens. John Cornyn of Texas and Lindsey Graham of South Carolina, and U.S. Reps. Kevin Brady of Texas and Thomas Massie of Kentucky.

During oral arguments, Chief Justice John Roberts expressed frustration that the long-running legal dispute has not yet been settled.

“The problem is that neither side in this debate wants the accommodation to work,” he told Paul Clement, who represents Little Sisters of the Poor. “Is it really the case that there is no way to resolve those differences?”

U.S. Solicitor General Noel Francisco argued that the Religious Freedom Restoration Act permits the exemptions from the mandate.

Justice Ginsburg would have none of it, coming down hard on Francisco during the question-and-answer session.

“You have just tossed entirely to the wind what Congress thought was essential, that is, that women be provided these … services, with no hassle, no cost to them. Instead, you are shifting the employer’s religious beliefs, the cost of that, on to these employees who do not share those religious beliefs.”

Francisco said he rejected the premise of the question “because there’s nothing in the [Obamacare statute], as this court” previously recognized in its ruling in Burwell v. Hobby Lobby (2014) “that requires contraceptive coverage.” That decision held that corporations have to be exempted from the mandate if offering contraception would run afoul of its owners’ sincerely held religious beliefs.

Chief Deputy Attorney General of Pennsylvania Michael J. Fischer told the court the other side was being disingenuous.

“These arguments make apparent that what this case is about is not the resolution of a long-running dispute but rather the assertion of vast agency authority at the expense of Congress and the courts,” he said.

Justice Clarence Thomas broke his usual silence during hearings to ask Clement about the proliferation of “nationwide injunctions, such as the one in this case.”

“I think that it’s particularly inappropriate to have a nationwide injunction in a case like this,” Clement said, adding that the courts have not come to uniform decisions on this contraceptive mandate.

“For a single district court judge to think that he or she has a monopoly on the reasoning here” and impose “a remedy that affects people across the nation” is damaging, he said. “These nationwide injunctions short-circuit” the judicial process “and put enormous pressure on this court and it forces this court to hear cases in emergency postures.”