Legal counsel for the Little Sisters of the Poor delivered oral arguments to a federal appellate court on July 7 as the Catholic religious society continued its 15-year legal battle over contraception mandates.
The dispute goes back to a 2011 federal regulation imposed by the U.S. Department of Health and Human Services (HHS), which requires employers to include coverage of contraception in healthcare plans offered to employees, as part of rules implementing the Affordable Care Act.
Although the Little Sisters of the Poor already won two Supreme Court cases — which found the federal government must protect the religious freedom of those who object to contraception and that the federal government has the authority to create exemptions — the attorneys general of Pennsylvania and New Jersey are challenging federal exemptions on grounds that the Supreme Court has not yet ruled on.
A lower court ruled in favor of the two states, against the Little Sisters of the Poor, finding that the federal exemptions are arbitrary and capricious. The sisters filed an appeal, which is being considered by the U.S. Court of Appeals for the 3rd Circuit.
Aimee Thomson, who represented the two states, argued that the broad exemptions — which allow both religious and moral objectors to avoid the mandate — are “arbitrary and capricious” and that the exemptions “swept well beyond all religious employers” who first objected to the mandate.
Under the rule, employers who have moral or religious objections can opt in to an accommodation in which the federal government subsidizes contraception coverage in their plans. Employers who also have moral or religious objections to the accommodation can sidestep contraception coverage altogether.
She told the panel of judges that the exemption exceeds the scope that is required under the Religious Freedom Restoration Act (RFRA). She said the regulators failed to show that these exemptions were necessary to solve the religious liberty issue and expressed concerns over employers potentially getting exemptions even though their objections are not sincere.
Thomson said it’s unclear “how many women have been impacted” by insincere objections, but “expecting female employees” to study policies and litigate an employer’s insincere objections is burdensome.
“That is an incredible burden to place on employees and on women,” she said.
Mark Rienzi, president of Becket and lead attorney for the Little Sisters, argued that the federal government sought to “choose a middle ground” that created a mandate but protected religious freedom, based on Supreme Court guidance: “Nothing about that is even close to arbitrary and capricious.”
“This law is about the federal government … accommodating religion with its own mandate,” he said.
Rienzi said a rule does not become arbitrary and capricious just because the scope is “a hair more than what’s required” under RFRA.
The Little Sisters of the Poor are also receiving support from the Department of Justice. Deputy Assistant Attorney General Eric McArthur argued on behalf of the federal government, in favor of the exemptions, saying RFRA does not require the exemptions to be the “bare minimum.”
He said HHS chose to “set everything aside and take a fresh look at everything” and decided “an exemption was the most appropriate administrative response” to objections. He said this was adopted “as a policy matter … even if RFRA does not compel it.”
McArthur argued there is “no good reason” for someone to insincerely request an exemption because the employer can request the accommodation “at zero cost.” Yet, if the court decides the exemptions are too broad, the court could strike down “one line in the rule” rather than “take down the entire rule,” as the two states have requested.
Mother Loraine Marie Maguire of the Little Sisters of the Poor said in a statement after the oral arguments that the states’ lawsuit to eliminate the exemptions is threatening their mission to serve the poor and the elderly.
“This is our God-given mission,” she said “For nearly 200 years we have welcomed the elderly poor and dying into our homes, and with the population of seniors rapidly growing we cannot allow a government lawsuit to stop us from carrying out our mission. Pennsylvania and New Jersey can keep fighting if they want. All we want is to keep serving.”
