Roughly a week after its loss before an appeals court in Denver, a group of nuns who objected to Obamacare’s birth-control mandate have taken their case to the Supreme Court.
The Little Sisters of the Poor Home for the Aged is the latest in a string of nonprofit plaintiffs who’ve asked the justices to hear them out next term, saying the Obama administration hasn’t done enough to absolve them from providing birth control they find sinful, including morning-after pills that Catholic groups equate with abortion.
They haven’t persuaded top federal judges, though. When the U.S. Court of Appeals for the 10th Circuit turned away the Little Sisters, it became the fifth appellate court to reject religious nonprofits’ challenge to the Obama administration policy.
The nonprofits say they’ll find more sympathetic ears before the Supreme Court, which last year insulated certain corporations from the Obamacare-related mandate requiring employers to cover 20 types of FDA-approved drugs and services as part of their health plans.
“The government has lost every single time they have made these arguments before the Supreme Court — including last year’s landmark Hobby Lobby case. One would think they would get the message and stop pressuring the Sisters,” said Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty and lead attorney for the Little Sisters.
The Hobby Lobby case allowed family-owned corporations who object to the mandate opt out on moral grounds.
The Health and Human Services Department drafted an accommodation for them, finalized this month, that extends the same type of opt-out clause that HHS offered nonprofits.
Under that policy, faith-based universities and charities notify either their insurers or the federal government of their objection to providing contraception, and the insurers or plan administrators would then step in and make sure employees can get contraception without the religious charity having to pay for it.
Federal appeals judges have said the accommodation is appropriate, denying the nonprofits the type of circuit split that helped Hobby Lobby reach the justices.
Religious nonprofits say they are still complicit in connecting their employees with coverage. They want the type of blanket exemption from the mandate that churches, synagogues and other houses of worship enjoy.
The Becket Fund filed its request to the Supreme Court with former U.S. Solicitor General Paul D. Clement, the administration’s main courtroom rival on Obamacare.
They are relying on the Religious Freedom Restoration Act (RFRA) of 1993, which says the government must find the least restrictive means possible to achieve its aims — in this case, providing cost-free birth control through employer-sponsored health plans.
Hobby Lobby, an arts-and-crafts chain, successfully used the law to sway the court in its 5-4 decision last year.
“That countless religious employers not among the happy few exempted by HHS are being forced to comply with the contraceptive mandate despite RFRA is ample cause for this Court’s intervention,” the lawyers said.
The nonprofits also said the First Amendment prohibits HHS from exempting some religious employers but not others.
Earlier this month, the Becket Fund filed a petition asking the Supreme Court to take up lawsuits from Houston Baptist University, East Texas Baptist University and Pennsylvania-based Westminster Theological Seminary.
The Archdiocese of Washington, an anti-abortion ministry known as Priests for Life and the Rev. David A. Zubik — bishop of the diocese in Pittsburgh — also have asked the court to review their pleadings, which failed in the circuit courts.
• Tom Howell Jr. can be reached at thowell@washingtontimes.com.
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