Little Sisters of the Poor appeals contraceptive mandate … again

A group of Catholic nuns is continuing its 14-year battle to ensure it doesn’t have to include contraceptives in its health insurance plans. The Little Sisters of the Poor, an order of nuns that has served the elderly poor for nearly 200 years, has religious objections to providing these contraceptives, although federal rules require health plans to include them.

The Little Sisters already won two Supreme Court cases upholding the group’s constitutional rights in 2016 and 2020. Now the nuns are fighting Pennsylvania and New Jersey, which have rejected a 2017 federal religious exemption to the healthcare mandate. Without this exemption, the Little Sisters will either have to cover contraceptives, including some that can act as abortifacients, or face fines of tens of millions of dollars.

Earlier this month, the Little Sisters filed its opening brief with the 3rd U.S. Circuit Court of Appeals, asking it to block an August U.S. District Court ruling that sided with the states.

“They will continue to fight back as long as their ministry is under threat,” said Diana Thomson, an attorney at Becket Fund for Religious Liberty, which represents the Little Sisters. “This is another opportunity for the Little Sisters to continue to win and continue to make good religious precedent.”

The Little Sisters’ troubles began in 2011 when the Department of Health and Human Services, then under the Obama administration, required employers to provide private insurance plans that cover contraceptives. The department did not exempt healthcare plans offered by religious organizations like the Little Sisters. The nuns filed a class-action lawsuit in 2013.

After the case worked its way through lower courts, in 2016 the Supreme Court unanimously ruled that the Little Sisters should receive a religious exemption. The following year, the Trump administration issued rules providing broad religious exemptions to nonprofits that had religious or moral objections to the contraceptives.

But more than a dozen states sued over the broad exemptions in multiple cases, contending that the government didn’t have the authority to issue them.

The Little Sisters returned to the Supreme Court in 2020 and won again, this time with a 7-2 ruling. The high court upheld the exemptions and said they were not procedurally defective. But states could still challenge the exemptions through legal routes the Supreme Court decisions didn’t address.

Pennsylvania and New Jersey sued in lower courts, arguing that the exemptions were arbitrary and capricious. They said the Trump administration didn’t follow protocol when adopting the amendments and failed to comply with the Administrative Procedure Act.

In August, a District Court sided with the states and struck down the 2017 exemptions on these grounds in a nationwide ruling. The Little Sisters appealed to the 3rd Circuit, and the Trump administration filed a brief backing the Catholic group.

“It is painful that we have spent more than a decade defending [our] mission in court,” Loraine Marie Maguire of the Little Sisters said in a statement. “We simply want to continue our work without being forced to violate our faith.”

In the group’s brief, the Little Sisters argue that if the federal government or states want to pass out contraceptives, they don’t need nuns to help.

Additionally, the states have failed to identify any women who have been harmed by the religious exemption. They have not provided evidence showing that the exemption has caused someone who wanted a contraceptive to lose access to it.

The Little Sisters argue that the District Court’s ruling is “irreconcilable” with the Supreme Court’s 2020 opinion and leads to a constitutional conflict. Without the exemption, the original 2011 contraceptive mandate can’t be constitutionally reimposed, the nuns argue.

While the Little Sisters currently don’t have to provide contraceptives due to an order entered by another court, the 3rd Circuit case still carries big implications, Thomson said. If the 3rd Circuit upholds the lower court’s ruling, nonprofits across the country could lose their own religious exemptions. “This is something the Little Sisters have been doing to protect their ministry, but also to protect the ministries of others,” Thomson said.

The nuns’ case has become a “huge mess” simply because several states are unwilling to accept the Supreme Court’s precedent, said Brad Jacob, a constitutional law expert at Regent University School of Law. If the Little Sisters lose in the 3rd Circuit, litigation could drag on for years. If the group wins, then this case could finally be settled, he added.

“It kind of boggles my mind that anybody would think it’s important to force the Little Sisters of the Poor to provide abortifacient coverage to their employees,” Jacob said. “Number one, if you’re pro-abortion, why would you go to work for the Little Sisters of the Poor in the first place? Right? These are Catholic nuns. You know where they are on abortion.”