Supreme Court to hear Little Sisters of the Poor

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WASHINGTON, D.C. – After months of waiting, the international Catholic charity organization Little Sisters of the Poor will have their day in the U.S. Supreme Court, but the case will go forward without one of the Court’s strongest defenders of religious liberty – Justice Antonin Scalia, who died suddenly last month from natural causes.

The eight remaining justices will hear oral arguments in the case of Zubik v. Burwell at 10 a.m. March 23.

The Little Sisters, a 177-year-old order of nuns who care for underprivileged elderly populations in 27 U.S. cities, including Somerville, Massachusetts, have requested exemption from Obamacare’s contraception mandate. Under the mandate, issued by the Department of Health and Human Services, all employer health plans must provide coverage for contraceptives, sterilizations and some abortifacients.

The Little Sisters argue that the government cannot force them to authorize the provision of drugs or services that violate the religious teachings of the Catholic Church.

In the 2014 case of Hobby Lobby v. Burwell, the Supreme Court held that the mandate violated the Religious Freedom Restoration Act with respect to closely-held family businesses. Under an accommodation offered by HHS, religious organizations do not have to pay for coverage of contraception or abortion-inducing drugs themselves, but they are required to authorize the insurer or health plan administrator to provide separate coverage. The Justice Department claims that this opt-out provision is sufficient to protect religious groups from violating their sincerely held beliefs.

The Catholic nuns argue that this accommodation still requires them to violate the Church’s teachings. In July, a panel of the 10th Circuit rejected the request by the Little Sisters of the Poor for a religious exemption. But in August, the entire 10th U.S. Circuit Court of Appeals issued a stay of the original panel’s order until the Supreme Court issues its final ruling.

Many large corporations like Exxon, Chevron and Pepsi, are grandfathered out of the mandate. The Federal Register estimates that about 45 million Americans are covered by such grandfathered plans.  

And Sister Constance Veit, director of vocations for the Little Sisters of the Poor, argued recently in the New York Times: “for us this is not a money question; it is a moral question about what we offer in our plan.”

She compared it to high schools that have removed soda machines from their campuses in order to distance the sugary drinks from their students.

“It doesn’t matter that the soda companies will pay for the machines. And the school’s decision doesn’t prevent children from getting soda elsewhere. The school simply doesn’t want to be responsible for providing something it believes is bad for its students,” Veit wrote. “It is the same with us.”

Veit said that the organization would like to see the alternative solution be that the federal government allow the charity’s employees to access contraceptives and abortion services through its healthcare exchanges.

“This would both protect our religious freedom and better meet the government’s own goal of providing contraception coverage to women — those in protected religious plans and the millions of American women in exempted secular plans,” Veit wrote.

“Protecting our ability to care for the elderly poor ought to be at least as important as helping big business save a few dollars,” said Sister Loraine Marie Maguire, mother provincial of the Little Sisters of the Poor in a statement provided by the Becket Fund for Religious Liberty, which is representing the charity.

According to the Becket Fund, the Catholic group has received support from various religious leaders and 200 Democratic and Republican members of Congress – with more than 40 friend-of-the-court briefs filed at the Supreme Court on behalf of the Little Sisters.

But experts on religious freedom say that the untimely death of Justice Scalia raises doubts about the possibility of a legal victory for the religious order. Scalia cast a pivotal fifth vote in favor of Hobby Lobby.  

Douglas Laycock, a professor at the University of Virginia’s law school, told the National Catholic Register that when Scalia died, the Little Sisters “lost this case.”  Laycock told reporters that “the four dissents in Hobby Lobby are sure votes for the government.”  He further explained that, “the best the Little Sisters can hope for now is a 4-4 affirmance without opinion, leaving in place all the opinions [in the lower courts], in which the religious organizations lost.”

Contact Kara Bettis at [email protected] or on Twitter @karabettis.


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