The world’s most tenacious nuns were back at the Supreme Court on Wednesday morning, when the justices heard oral arguments in the latest round of the nearly eight-year saga surrounding the Affordable Care Act’s onerous contraception mandate.
In light of the COVID-19 pandemic, the high court made the unusual and unprecedented move of hearing the consolidated cases of Little Sisters of the Poor v. Commonwealth of Pennsylvania and Trump v. Pennsylvania, as well as several others, via teleconference. C-SPAN and other news outlets carried the arguments live.
Justice Ruth Bader Ginsburg participated in the arguments from a hospital bed.
If you thought the Little Sisters already won big at the Supreme Court, you’d be right. Now they’re fighting to preserve that earlier victory.
The Affordable Care Act—aka Obamacare—requires coverage of certain kinds of preventive services with no cost-sharing by enrollees. It gives the Department of Health and Human Services the task of specifying the types of preventive services for women that health insurance plans must cover.
As a result, the Obama administration’s HHS issued guidelines requiring coverage of all Food and Drug Administration-approved contraceptive methods and sterilization procedures, which included certain abortion-inducing drugs….
[In 2017], the Trump administration’s HHS issued interim final rules to provide much-needed relief for employers and educational institutions with religious or moral objections to the mandate.
Those rules were finalized in 2018, and predictably, spawned another round of challenges, specifically from the states of Pennsylvania and New Jersey, which sought to invalidate the protections for religious liberty provided in the new rules.
Opponents of the new rules characterize them as a way to deny women access to contraception, but they do no such thing. As I previously explained on The Daily Signal, the regulations “allow those with objections to not be complicit in choices that would violate their religious or moral convictions….”
The states challenging the new rules assert that Congress did not provide statutory authority for HHS to exempt religious objectors from the regulatory requirement to provide health plans that include contraceptive coverage.
The states further argued that Health and Human Services adopted the new rules in a procedurally flawed manner, and—in what only can be described as Kafkaesque reasoning—that the Little Sisters, whose litigation helped lead to the development and implementation of those rules, lacked standing to defend them.
That’s where things stood as of Wednesday morning’s oral arguments.
U.S. Solicitor General Noel Francisco began by arguing that those new rules reflect the “best traditions of this country’s commitment to religious liberty.”
Ginsburg, though, pushed back by stating that a “glaring feature of what the government has done in expanding this exemption is to toss to the wind entirely Congress’s instruction that women need and shall have seamless, no-cost, comprehensive coverage.”
Ginsburg later said: “This idea that the balance has to be all for the Little Sisters-type organizations and not at all for the women, just seems to me to rub against our history of accommodation, of tolerance, of respect for divergent views.”
After Francisco finished his arguments, Paul Clement, himself a former solicitor general during the George W. Bush administration, rose to argue for his clients, the Little Sisters of the Poor.
Clement immediately faced tough questions from Chief Justice John Roberts, who wanted to know why the existing accommodation had been insufficient. Roberts said he didn’t understand it at the time of the court’s Zubik decision, and he didn’t understand it now.
Clement also faced questions from a seemingly skeptical Justice Sonia Sotomayor, who asked how this situation would differ from a hypothetical one in which employers objected to providing reimbursement for a COVID-19 vaccine.
Sotomayor said she saw no difference, and in her view, the employers presumably would be required to provide it.
Justice Neil Gorsuch took a different tack. He asked Clement to focus on the procedural arguments raised by the case. Justice Elena Kagan did the same with Pennsylvania’s attorney.
In an encouraging exchange for the Little Sisters and their supporters, Justice Samuel Alito asked Pennsylvania’s lawyer some tough questions. Alito said:
Hobby Lobby held that if a person sincerely believes that it is immoral to perform an act that has the effect of enabling another person to commit an immoral act, a federal court does not have the right to say that this person is wrong on the question of moral complicity….
In a welcome development, Justice Clarence Thomas, who typically doesn’t ask any questions from the bench, engaged in an incisive back-and-forth with the advocates over two important issues that might have otherwise been glossed over: the standing of the states to bring this suit and the propriety of nationwide injunctions in cases such as these….
The above comes from a May 6 story in the Daily Signal.