The states of Pennsylvania and New Jersey are suing the Trump administration and the Little Sisters of the Poor, demanding the Catholic charity must comply with the Affordable Care Act’s contraception mandate.
Attorneys for the nuns, with the Becket religious liberty firm, argued at the 3rd U.S. Circuit Court of Appeals in Philadelphia on Tuesday that the state governments have the ability to provide contraceptive services without forcing their clients to pay for it through their medical insurance, according to a Becket news release.
After oral arguments before the court, Becket President Mark Rienzi, “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.”
“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 added.
“That argument makes no sense.”
— BECKET (@BECKETlaw) May 21, 2019
The lawsuit was originally brought against the Trump administration after it issued a rule in October 2017 formalizing a religious exemption to nonprofits like the Little Sisters of the Poor, which the U.S. Supreme Court had sided with in a unanimous decision the previous year.
The Little Sisters intervened as a co-defendant with the administration in November 2017.
Diana Verm, an attorney with Becket, told The Western Journal that the states of Pennsylvania and New Jersey are engaging in some strained reasoning in their suit.
“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,” Verm said.
The lawyer pointed out that the Obama administration created multiple exemptions, such as for churches, and the Supreme Court added others.
Sharon Lauchaire, communications director for the state of New Jersey, directed The Western Journal to its joint brief with Pennsylvania in the case filed at the 3rd Circuit, in which the attorneys general for the states accepted a “church exemption,” as defined by the federal government during the Obama administration.
They go on to argue the Trump administration has broadened the exemption too much by allowing employers with both “religious beliefs” such as the Little Sisters or a “sincerely held moral conviction” to opt out of the coverage.
The result, they argue, will be women not obtaining contraceptive coverage or states picking up the tab for the states’ lower-income residents.
The current litigation at the 3rd Circuit ultimately stems back to August 2011 when the Department of Health and Human Services during the Obama administration issued a federal regulation requiring all employers to provide all FDA-approved contraceptives as part of their health insurance plans free of charge, according to Becket.
Among those approved contraceptives was the morning-after pill and other abortifacients, which groups and employers including Hobby Lobby objected to as a violation of their Christian faith.
The Supreme Court decided in Burwell v. Hobby Lobby in 2014 that closely held companies did have the right to not provide drugs or devices that operate after the point of conception, thus creating an exemption to the contraception mandate.
The Little Sisters of the Poor — a Catholic order of nuns that operates homes for the elderly poor across the country — sought a complete exemption to the contraceptive mandate, but the HHS denied the request.
The Little Sisters went to court in September 2013 arguing their religious liberty rights were being violated.
They lost their case both at the federal district court level and at the 10th U.S. Circuit Court of Appeals in December 2013.
However, Supreme Court Justice Sonia Sotomayor granted the Little Sisters an emergency protection against the enforcement of the rule, temporarily protecting the organization from being assessed steep federal fines for noncompliance as the litigation proceeded.
In May 2016, the Supreme Court unanimously overturned the lower court rulings 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,” according to Becket.
With the issuance of the exemption by the Trump administration in 2017, the Little Sisters assumed that the matter had finally been resolved, before the current round of lawsuits once again targeting their exemption.
Catherine Glenn Foster, president of Americans United for Life, 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 once again find in 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.”
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