Update: In 2014, we told you about a challenge to Obamacare's contraception mandate filed in Denver by Little Sisters of the Poor, an organization jointly based here and in Baltimore; we've incorporated elements of our previous coverage into this post.
The Sisters lost that case, but they haven't given up their fight.
Today, the matter is being heard at the U.S. Supreme Court.
Among the groups that have supported the Little Sisters of the Poor is the Becket Fund for Religious Liberty, which describes itself as "a non-profit, public-interest legal and educational institute with a mission to protect the free expression of all faiths." While the organization has defended religious institutions "from A to Z...Anglicans to Zoroastrians," it is best known for defending Christian groups.
A page devoted to the Little Sisters suit notes that the Denver complaint was the 72nd the fund had filed against the Obamacare mandate, with other plaintiffs including "Belmont Abbey College, Colorado Christian University, East Texas Baptist University, Houston Baptist University, Ave Maria University, Wheaton College and Hobby Lobby."
Still, the Little Sisters' offering was among those that got the most traction. On December 31, 2013, a few months after the original complaint was filed (we've also shared it here), Supreme Court Justice Sonia Sotomayor issued a temporary restraining order exempting the organization from following the mandate until the legal challenge runs its course.
If Sotomayor hadn't acted, the mandate would have kicked in the next day.
The aforementioned brief, which runs 63 pages, describes the Little Sisters as "Catholic nuns who devote their lives to caring for the elderly poor. They provide care for the elderly of every race and religion, love and respect them as if each elderly person were Jesus Christ himself, and treat them with dignity and compassion until they die. The Little Sisters perform this ministry in homes throughout the world, including almost thirty in the United States. Although they have operated their homes in this country for over a century in the highly regulated sector of elder care, federal law has never before put them to the impossible choice of either violating their faith or violating the law."
The issue, according to the document, is EBSA Form 700, which the federal government requires religious institutions to fill out in order for other organizations to handle contraceptive coverage to which they might object. "The government's argument for requiring this specific act hinges on the fact that the Little Sisters have associated with religious benefits providers to provide employee benefits consistent with their shared Catholic faith," the suit maintains, adding, "The government argues that...filling out EBSA Form 700 is a meaningless exercise, to which the Little Sisters should have no objection."
The brief lays out three main complaints about the procedure. The first? Since the form "designates, authorizes, incentivizes, and obligates third parties to provide or arrange contraceptive coverage in connection with the plan," the brief contends that "once the Little Sisters execute and deliver the Form, the Mandate purports to make it irrevocably part of the plan by forbidding the Little Sisters to even talk to the outside companies that administer their health plan, 'directly or indirectly,' to ask them not to provide the coverage."
In addition, the brief allows that "regardless of whether the government sincerely believes EBSA Form 700 is morally meaningful, the relevant legal question is whether the Little Sisters do. And on that point, there is no dispute: the Little Sisters cannot execute and deliver the contraceptive coverage form without violating their religious conscience. The government may think the Little Sisters should reason differently about law and morality, but their actual religious beliefs — the beliefs that matter in this case — have led them to conclude that they cannot sign or send the government's Form."
Finally, the government's so-called "scheme" is said to violate the First Amendment, because it has "exempted a large class of religious organizations based on unfounded guesswork about the likely religious characteristics of different religious organizations. The government has no power to discriminate in this fashion, allowing some religious organizations to survive while crushing others with fines for the identical religious exercise. This violation of the Free Exercise and Establishment Clauses is compounded by a clear violation of the Free Speech Clause: the Mandate both compels the Little Sisters to engage in government-required speech against their will, and prohibits them from engaging in speech they wish to make."
These arguments didn't win the day in Denver.
However, Mat Staver, founder and chairman of the Liberty Counsel, a nonprofit working on behalf of the Little Sisters this time around, is looking forward to them being pressed today at the U.S. Supreme Court.
"Little Sisters of the Poor and many other religious, nonprofit organizations cannot and will not participate in killing innocent children," Staver maintains in a statement. "The federal government should never force Christian ministries to violate their faith in order to continue their mission.
"The Obama Administration's HHS mandate compels Little Sisters of the Poor to act against their sincerely held religious beliefs or face crippling fines that would end their ministry," he continues. "The Court must reaffirm America's historic commitment to religious liberty or restrict its free exercise for decades to come."
Staver adds that "this case brings into focus the importance of replacing Justice Scalia with a Justice who will adhere to the original meaning of the Constitution. If the Court splits 4-4, then there is no final decision. That would mean the Christian groups, including Little Sisters of the Poor, will lose. In the event the Court evenly splits, the Justices could also decide to rehear the cases when Justice Scalia's seat is filled."
Look below to see a video introduction to the Little Sisters of the Poor, followed by a February 2014 brief, the original complaint and an NPR report about the case as it heads to the Supreme Court.
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