Pennsylvania and New Jersey are suing President Trump and his administration, as well as, the Little Sisters of the Poor. The states are demanding that the Catholic charity must comply with the contraception mandate issued by the Affordable Care Act. On Tuesday, the nuns’ attorneys, who are with the Becket religious liberty firm, have argued at the 3rd U.S. Circuit Court of Appeals in Philadelphia that the state governments are able to provide contraceptive services without making their clients pay for it through their medical insurance.
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Once oral arguments were made before the court, Becket President Mark Rienzi said: “Remarkably the states of Pennsylvania and New Jersey were in court arguing that the federal government has to force the religious sisters to give out contraception.” He continued by saying: “They actually ended up telling the court today that they weren’t sure if the mandate they were trying to enforce was legal, but the court should just go ahead and issue an order to enforce it anyway.” He stated: “That argument makes no sense.”
Originally, the lawsuit was brought up against Trump’s administration after it issued a ruling in October of 2017. The ruling formalized a religious exemption to nonprofits, such as the Little Sisters of the Poor, which the Supreme Court unanimously sided with the year before.
As a co-defendant, The Little Sisters intervened with the administration in November of 2017. An attorney with Becket, Diana Verm, spoke with The Western Journal and said that New Jersey and Pennsylvania are engaging in strange reasoning when it comes to their lawsuit. Verm said: “They say the agencies don’t have the authority to issue an exemption from the [Affordable Care Act], even though the agency issued the mandate in the first place.” The lawyer also pointed out that Obama’s administration created several exemptions, such as for churches, and the Supreme Court added others.
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The communications director for the state of New Jersey, Sharon Lauchaire, directed The Western Journal to its joint brief with Pennsylvania in the case filed with the 3rd Circuit. In that case file, the attorneys general for the states accepted a “church exemption,” which was defined by the federal government during Obama’s administration.
They have argued that Trump’s administration has broadened the exemption a little too much by allowing employers with “religious beliefs” similar to the Little Sisters or a “sincerely held moral conviction” to opt out of providing coverage for contraceptives. They argue that this will result in women not being able to obtain the coverage they need or the states will have to pick up the tab for those that can’t afford to pay for it themselves.
Currently, the litigation at the 3rd Circuit began in August of 2011 when the Department of Health and Human Services issue a federal regulation during the Obama administration that required all employers to provide FDA-approved contraceptives as a part of their insurance plan for no cost to the employee. Among those approved were the morning-after pill and other abortifacients. Groups and employers, like Hobby Lobby, objected to these as a violation of their Christian faith. In 2014, the Supreme Court ruled in Burwell v. Hobby Lobby that closely held companies have the right to refuse drugs or devices that operate after the point of conception. This ruling created an exemption to the contraception mandate.
The Little Sisters of the Poor, a Catholic order of nuns who operate homes for the elderly, attempted to get a complete exemption to the contraceptive mandate. The HHS denied their request. In September of 2013, the Little Sisters went to court to argue that their religious liberty rights were being violated. Not only did they lose their case in the federal district court level, but they also lost their case in the 10th U.S. Circuit Court of Appeals in December of 2013. Supreme Court Justice Sonia Sotomayor granted the Little Sisters an emergency protection against the enforcement of the rule. This ruling temporarily protected the organization from getting fined for not complying with the litigation proceeding.
In May of 2016, the Supreme Court overturned the lower court ruling with a unanimous decision and “instructed the lower courts to provide the government an opportunity to find a way to provide services to the women who want them without involving the Little Sisters.” When the Trump administration issued the exemption in 2017, the Little Sisters assumed that the matter had been resolved, but that was before the current round of lawsuits targeted their exemption.
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The president of Americans United for Life, Catherine Glenn Foster, told the Western Journal that her organization is hopeful that the 3rd Circuit upholds the religious liberty rights of the Little Sisters. “It’s outrageous that pro-abortion political forces are continuing to try to strip religious orders and other conscientious charities and businesses of their rights of conscience to be free from government coercion to pay for life-destroying drugs,” she said. Verm agreed that the court should find favor of the Little Sisters. “It has been true since the beginning of the mandate in 2011, the government has lots of ways it can do things,” she said. “If it thinks it’s important to get contraceptives to women, it can do that, but it doesn’t have to use nuns.”