Once again, in a case that has broad implications for religious nonprofits, the Little Sisters of the Poor on Wednesday were at the Supreme Court, defending the merits of federal protections for their sincere religious objections to the Affordable Care Act’s contraceptive and abortifacient coverage mandate.

Despite a 2017 Trump administration rule that prevents the government from forcing Americans with religious or moral objections to pay for health insurance that covers contraceptives or abortifacient drugs, the states of New Jersey and Pennsylvania have refused to comply in allowing the exemptions, forcing the Little Sisters, a Catholic nonprofit that serves the elderly poor, back into court.

“The Court has ruled in the Little Sister’s favor twice before, recognizing what was obvious from the very beginning—that the federal government doesn’t need nuns to help it distribute contraceptives and that forcing them to participate is plainly unconstitutional,” said Mark Rienzi, president of Becket Fund, which has represented the Little Sisters through eight years of legal battles. “We hope that the Supreme Court ends this litigation once and for all.”

“This is an attack on religious freedom,” Cissie Graham Lynch of the Billy Graham Evangelistic Association said in a brief video posted on Twitter. “We are still seeing the aftermath of the attack on religious freedom from the Obama administration, so we need to be praying for the Little Sisters of the Poor. This affects all faith-based ministries. Let them serve.”

Pennsylvania and New Jersey have argued that the federal government didn’t have the authority to create religious exemptions that counter what it says was Congress’ intent at providing access to free contraception for women—a point attorneys for the Little Sisters and the federal government dispute.

In Wednesday’s arguments, conducted via telephone with Justice Ruth Bader Ginsburg speaking from a hospital bed recovering from a gallbladder procedure, the high court seemed to lack a clear consensus on how it might rule, according to legal blogs and published media reports.

Conservative justices Clarence Thomas, Samuel Alito, Brett Kavanaugh and Neil Gorsuch appeared skeptical of the states’ argument that the federal government had exceeded its authority with the new conscience exemptions. Liberal justices Ginsburg and Sonia Sotomayor questioned the exemptions in light of the ACA’s goals, while Chief Justice John Roberts and justices Stephen Breyer and Elena Kagan “seemed to look for a middle ground,” wrote Amy Howe, an attorney whose analysis of the arguments was reposted at SCOTUSblog.com.

Answering Ginsburg’s contentions that the ACA—known broadly as Obamacare—intended to offer “seamless” contraceptive access to women at no cost, and that the Trump rules “authorize harm to other people,” Solicitor General Noel Francisco, arguing for the federal government, said the text of the ACA doesn’t mandate contraceptive coverage at all.

Later, Gorsuch seemed to allude to this, noting that the states’ case hinges on whether the federal government exceeded its authority with the administration’s conscience exemptions. Gorsuch argued that ACA gives “very expansive authority” to federal agencies to define how the law is administered. The new rules were issued by the Department of Health and Human Services in 2017, as well as related orders in 2018 and 2019, the latter offering conscience protections for individual medical workers. Kavanaugh argued that none of the objections to the conscience rules override the fact that they are reasonable accommodations.

The fight for groups like the Little Sisters and other parachurch ministries with religious or moral objections to the Obamacare contraceptive and abortifacient requirements has continued almost from the time the bill’s major provisions came into effect.

While houses of worship were exempted from the start, the Obama administration offered other faith-based organizations an “opt-out” exemption that still didn’t remove them from indirect involvement in offering birth control.

Meanwhile, Hobby Lobby, a family-owned crafts retailer run by devout Christians, won an exemption to the contraceptive-abortifacient mandate as a “closely held” company with sincere religious objections. Still, religious nonprofits found no morally acceptable resolution until the Trump administration’s conscience rules in 2017.

Helen Alvaré, professor at George Mason University’s Antonin Scalia Law School, wrote in a May 5 Wall Street Journal op-ed that contraceptives are now even more widely available for women through expanded federal Title X provisions.

“It has never been easier or more affordable to obtain contraceptives,” Alvaré wrote.

“Do the underserved women the states claim to defend exist, or is it all a political ploy to bring down religious exemptions and the faith-based ministries that rely on them?”

Paul Clement, attorney for the Little Sisters, noted in his arguments Wednesday that no state has been able to produce even one woman whose coverage would be threatened by the conscience exemptions.

 

Above: President Donald Trump greets members of the Little Sisters of the Poor during a National Day of Prayer ceremony in the Rose Garden at the White House in Washington, D.C. on May 4, 2017.

Photo: Kevin Dietsch/UPI/Alamy Stock Photo