Update on the Little Sisters of the Poor Case
On September 3, five federal judges of the Tenth U.S. Circuit Court of Appeals did something highly unusual in our justice system.
They issued a sharp critique of that Court’s own July 14 three-judge panel that ruled against the Little Sisters of the Poor. The three judges upheld the federal government’s attempt to force the nuns to certify their objection to providing free access to all FDA-approved contraceptives, including abortion-inducing drugs and sterilization — a certification that triggers coverage of the objectionable services by a third party — in violation of their religious beliefs, or face heavy fines.
The Little Sisters of the Poor run homes for the elderly and dying in 31 countries, including 30 in the U.S., where it has operated since 1868. The nuns have been in court since 2012, seeking protection from the contraception mandate under the Affordable Care Act.
After losing in the Tenth Circuit, the Little Sisters immediately appealed to the U.S. Supreme Court. Although they had not asked the entire Tenth Circuit to reconsider the three-judge panel’s opinion, nonetheless, a vote was taken in the Tenth to consider an “en banc” rehearing, or a review by the full court. Even though the majority voted to deny full review, the five justices decided to write their separate dissent anyway.
“The opinion of the panel majority is clearly and gravely wrong,” the five-judge dissent stated, “on an issue that has little to do with contraception and a great deal to do with religious liberty.“ “When a law demands that a person do something the person considers sinful” or face “a large financial penalty,” it continued, “then the law imposes a substantial burden on that person’s free exercise of religion.”
The term, “substantial burden” is important because in their lawsuit, Little Sisters of the Poor v. Burwell, the nuns charged that the mandate violates the Religious Freedom Restoration Act as well as constitutional protections for free speech and religious practice. RFRA, passed in 1993, 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 U.S. Department of Health and Human Services has exempted churches and certain church-affiliated entities from the contraception mandate, 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.”
Under an “accommodation” for these “non-exempt” religious organizations, the government does not require them to provide the contraceptive services in their health care plan directly, but they must sign a form that places the responsibility on a third party administrator to do so, or face crippling fines.
The Tenth Circuit three-judge panel ruled that, despite the Little Sisters’ belief to the contrary, signing their health plan over to a third party to provide the objectionable services “relieves them of complicity.”
But “it is not the job of the judiciary to tell people what their religious beliefs are,” the five dissenting judges stated.
Indeed, the Tenth Circuit’s July 14 ruling appears to contradict the U.S. Supreme Court’s June 2014 finding in the landmark religious freedom case, Burwell v. Hobby Lobby. In that case, the Court ruled that the government could not force family-owned businesses to provide abortion-inducing drugs and devices through their employee insurance plan if it violated their sincere religious beliefs.
The Tenth Circuit stated that the reasoning in the Hobby Lobby case did not apply in the Little Sisters’ case because the sisters were a nonprofit and therefore fell under the terms of the “accommodation,” which were not offered to Hobby Lobby as a for-profit company.
However, there is an interesting parallel in the findings of the Hobby Lobby decision that relate to the Little Sisters’ case on the attempt by the judiciary to impose its own views about someone’s religious convictions.
In the Hobby Lobby case, for example, HHS had argued that providing the contraceptive coverage would not itself result in the destruction of an embryo; that would occur only if an employee chose to take advantage of the coverage and to use one of the methods at issue.
“This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs),” the Supreme Court found, “and instead addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable).”
The plaintiffs in that case “believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage,” it stated.
This belief “implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another,” the court wrote. “Arrogating the authority to provide a binding national answer to this religious and philosophical question,” it wrote, allows the government to “tell the plaintiffs that their beliefs are flawed.” “For good reason,” it noted, “we have repeatedly refused to take such a step.”
The Court cited similar language from its previous rulings, including: “Repeatedly and in many different contexts, we have warned that courts may not presume to determine the …plausibility of a religious claim.”
This is the second time the Little Sisters have appealed to the U.S. Supreme Court for relief. In January 2014, the Supreme Court granted an injunction protecting the Little Sisters from the mandate while their case with still with the Tenth Circuit.
The Sept. 3 dissent by the five Tenth Circuit judges “offers important support to the Little Sisters’ request that the Supreme Court hear their case,” said Mark Rienzi, Senior Counsel at the Becket Fund for Religious Liberty and lead counsel for the Little Sisters of the Poor. “These judges understand that courts and bureaucrats should not be telling nuns what the Catholic faith requires.”
More than 105 cases have been filed against the HHS mandate, including for-profit and non-profit organizations, representing over 300 plaintiffs, according to the Becket Fund, including a substantial number of Catholic universities, charities and dioceses.