Appeals court revives attack on nuns who refused to facilitate abortion

Little Sisters at the Supreme Court (Image courtesy Becket Fund)

It was Obama administration bureaucrats who, under the broad outline of Obamacare, wrote rules that required Catholic nuns to fund contraceptives, including abortion-causing drugs, in violation of their religious beliefs.

The Supreme Court has ruled twice in favor of the Little Sisters of the Poor, but state officials in Pennsylvania and California continue to demand that the Catholic group include contraceptives in its employee health-care plan.

On Tuesday, a three-judge panel of the 9th U.S. Circuit Court of Appeals invalidated the Trump administration's rules to protect the Catholic nuns and others from being forced to fund abortions.

In 2016, the U.S. Supreme Court unanimously rejected lower court decisions against the Little Sisters of the Poor, concluding the government should be allowed to "arrive at an approach going forward that accommodates the petitioners' religious beliefs." President Trump issued an executive order in 2017 that led to a federal rule providing religious groups and persons holding sincere religious beliefs with an exemption to the contraception mandate.

The Family Research Council said on its website Wednesday the Supreme Court "needs to settle the debate and rule that the government cannot require people and groups to violate their conscience by providing contraceptive services."

"The court should uphold the HHS rule, which protects the inherent human right of religious liberty. This liberty promotes the common good and allows society to flourish. The Little Sisters of the Poor certainly promote the common good as they assist the poorest in society. Violating their conscience ought not to be a precondition for the Little Sisters assisting those most in need."

The ruling from the 3rd Circuit already has been appealed to the Supreme Court, according to the non-profit Becket, which is representing them.

"Over the past three years the Supreme Court has twice protected the Catholic nuns, but the states have dragged them back to court," Becket said. "In Commonwealth of Pennsylvania v. Trump, Pennsylvania Attorney General Josh Shapiro threatened the Little Sisters' ministry by challenging their religious exemption, forcing the Little Sisters to continue to defend themselves in court."

The appeal to the high court states: "Since late 2013, this court has repeatedly been presented with questions concerning the relationship between the federal contraceptive mandate and the Religious Freedom Restoration Act and the adequacy of ever-evolving government treatment of religious objectors. In a series of emergency orders, the court protected religious non-profits from facing large fines for noncompliance, but repeatedly refrained from expressing any definitive view on the merits of their RFRA claims.

"In its 2014 Hobby Lobby decision, the court discussed the regulatory mechanism available to religious non-profits as one of the several less restrictive alternatives to the mandate's treatment of religious for-profits. The court understood that there were ongoing challenges to the sufficiency of that mechanism under RFRA, and it emphasized that it was not deciding whether it was sufficient for those who object to it. Nonetheless, by pointing to it as a potential less restrictive alternative, the court seemed to assume that the executive branch had ample power to promulgate some sort of religious accommodation.

"In the fall of 2015, as scores of cases involving religious non-profits worked their way through the courts, the court granted certiorari to decide the RFRA question. But there too the court demurred: the unanimous eight-justice per curiam decision in Zubik noted the 'substantial clarification and refinement' of the parties' positions and remanded for the parties to explore a resolution. Once again, the court seemed to assume ample authority on the part of the executive to accommodate religious exercise broadly enough to bring the litigation to an end.

"Three years later," the brief says, "it is clear that the litigation will not end unless and until this court provides definitive guidance on the RFRA questions."

Obamacare requires companies to provide "preventive care" but does not define it. That was left to the bureaucrats in the Health Resources and Service Administration, who created the free-contraception mandate.

At one point there were about 100 lawsuits against the mandate from religious groups and organizations who objected to being forced to violate their beliefs.

The federal government and the states of Pennsylvania and California admitted women could have access to the contraceptives without the nuns' participation.

Nevertheless, the states sued.

"This is a nonsensical political battle that has dragged on six years too long. These states have not been able to identify a single person who would lose contraceptive coverage under the new HHS rule, but they won’t rest until Catholic nuns are forced to pay for contraceptives," said Mark Rienzi, president of Becket. "It is time for the Supreme Court to finally put this issue to rest."