Federal Appeals Court Rules Little Sisters of the Poor Must Provide Birth Control

October 28, 2019 Updated: October 28, 2019

A Roman Catholic charity that objects on religious grounds to having to provide health insurance that covers birth control, sterilization, and abortifacients for its employees under the Obamacare law has lost the latest round of a long-running legal battle in a federal appeals court.

The Obama-era contraception mandate has been a source of controversy since it surfaced in 2011, reportedly spurring lawsuits from upward of 100 private individuals, religious groups, state governments, and businesses that objected to it on religious grounds. In 2017, the Trump administration created a regulation that exempted religious groups from complying with the Obamacare mandate.

In the present case, cited as California v. Little Sisters of the Poor, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit ruled on Oct. 22 that a preliminary multi-state injunction issued by U.S. District Judge Haywood S. Gilliam Jr. of San Francisco against the Trump-era exemption provided to religious groups could continue.

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 … [that] serve the elderly poor in over 30 countries around the world. … [Offering] the neediest elderly of every race and religion a home … ”

The injunction bars enforcement of final rules by the U.S. Department of Health and Human Services (HHS) in California and the other 12 states involved in the lawsuit plus the District of Columbia that exempt employers with religious and moral objections from the Affordable Care Act’s requirement that group health plans cover contraceptive care.

In July, the 3rd Circuit Court of Appeals also ruled against the Little Sisters, which, among other organizations, had received a religious exemption from the HHS mandate, The National Catholic Register reported.

“The Little Sisters never wanted this fight and have spent eight years trying to focus on caring for the elderly poor instead of fighting senseless legal battles. The states in these lawsuits should leave the nuns alone,” said Montse Alvarado, vice president and executive director of the Becket Fund for Religious Liberty, a public-interest law firm that represents the Little Sisters.

Alvarado wrote on Twitter on Oct. 22 that the Trump administration and Becket have asked the Supreme Court to review the appeals court decision.

“It must step in to fix the mess and secure #religiousfreedom for the Little Sisters,” she said. “Enough is enough.”

The 9th Circuit itself stated in its opinion that it is “in unchartered waters” and welcomes “guidance from the Supreme Court,” which has already weighed in on cases about the exemption but has yet to issue a definitive ruling.

Acknowledging that a U.S. District Court in Pennsylvania already issued a nationwide injunction against the Trump administration’s exemption, the 9th Circuit stated, “The Supreme Court has yet to address the effect of a nationwide preliminary injunction on an appeal involving a preliminary injunction of limited scope.”

The ruling comes almost two and a half years after President Donald Trump signed Executive Order 13798 on May 4, 2017, in which he took steps to protect Americans’ fundamental rights of conscience and religious liberty.

EO 13798 states it “shall be the policy of the executive branch to vigorously enforce Federal law’s robust protections for religious freedom” because our “Founders envisioned a Nation in which religious voices and views were integral to a vibrant public square, and in which religious people and institutions were free to practice their faith without fear of discrimination or retaliation by the Federal Government.”

The order directs “[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 ruling also comes after former U.S. Rep. Beto O’Rourke of Texas, now a Democratic presidential candidate, promised earlier in October to revoke religious charities’ tax-exempt status if they oppose same-sex marriage.

“There can be no reward, no benefit, no tax break for anyone or any institution, any organization in America that denies the full human rights and the full civil rights of every single one of us,” he told CNN’s Don Lemon. “So, as president, we’re going to make that a priority and we are going to stop those who are infringing upon the human rights of our fellow Americans.”

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