SCOTUS justices grill Obama admin: Why are you ‘hijacking’ nuns’ health plan to offer contraceptives?

Ben Johnson

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Publication Date: March 23, 2016

WASHINGTON, D.C., March 23, 2016 (LifeSiteNews) – As the Supreme Court justices heard oral arguments over the Little Sisters of the Poor's case on the HHS mandate, one word impacted the hearings more than any other: “hijacking.”

Paul Clement, an attorney for the coalition of religiously affiliated organizations that object to the HHS mandate, told justices that the Obama administration's “accommodation” and opt-out plan does not sufficiently cover conscience rights.

Under HHS regulations, all employers must provide female employees with contraceptives, sterilization, and potentially abortion-inducing drugs with no co-pay. Churches and religious institutions are exempted. But religiously affiliated groups – including an order of nuns like the Little Sisters of the Poor – are not eligible, because they serve people outside their own denomination.

“If my clients would have just stuck to their knitting and not helped the elderly poor, they could qualify,” Clement said.

To opt out of coverage, they must sign a form, which triggers the government compelling their insurance provider to offer women birth control for free.

The sisters, and their fellow plaintiffs, say even signing the form violates their conscience, because it makes them complicit in the coverage, making them a party to grave sin.

Clement told justices this morning that the opt-out still uses the sisters' own insurance plan to furnish coverage they specifically chose not to furnish.

“They are going to hijack our health plans and provide the coverage against our will,” Clement said, in a turn of phrase that governed much of the rest of the discussion.

At one point, Chief Justice John Roberts told the government's attorney, Solicitor General Donald Verrilli, that the religious groups had “used the phrase 'hijacking,' and it seems to me that that's an accurate description of what the government wants to do.”

The court's swing vote, Justice Anthony Kennedy, also pressed Verrilli “why it's necessary to hijack the plans.”

The Obama official attempted to create a distinction, saying under the current regulation, the insurance company distributes contraception and abortifacients not “through that plan. It's in parallel to that plan.”

Just Kennedy responded, “That just underscores that the church plans here, religious organization plans here, are, in effect, subsidizing the conduct that they deemed immoral.”

“But you're saying, don't worry, religions, you're not complicit,” he said.

The nuns and their attorney attempted to show, in addition to being a substantial burden on their religious liberty, the Obama administration's “accommodation” violated the 1993 Religious Freedom Restoration Act by not using the least restrictive means at its disposal.

Justice Sonia Sotomayor attempted to derail Paul Clement early into his argument. Justice Kennedy provoked laughter in the courtroom by asking Clement to turn from her hypothetical example back to “what we are talking about” today.

Clement said contraceptives could be offered through state health care “exchanges, through Title X,” or “an Aetna uber-policy where everybody gets their contraceptives, [or] some overall government policy.”

“We, in fact, object to none of those things,” Clement said – only to the “hijacking.”

Justice Samuel Alito asked how co-opting the nuns' insurance plan differed from building a room on Little Sisters' property, paying the nuns rent, and distributing contraceptives there.

He also asked why the government objected to allowing insurance companies to sell a separate policy for contraception, the way they presently sell dental or vision policies. “Is it because these exchanges are so unworkable, even with the help of a navigator?” he asked.

Verrilli replied that the Affordable Care Act does not currently allow for such a plan, so “you couldn't do it under current law.”

Chief Justice Roberts responded, “Well, the way constitutional objections work is you might have to change current law,” as the court burst into laughter.

Verrilli responded that the government wanted to assure that all women were covered, that they could receive coverage from their own doctors, and that no separate plan be issued to complicate matters.

He called the Little Sisters' petition “a demand that those rights for those employees who may not share petitioners' beliefs [to] be extinguished.”

Legal observers are already saying this will be a 4-4 tie. Justices Sotomayor, Breyer, Ginsburg, and Kagan clearly favored the mandate – with Sotomayor at one point asserting that widespread contraception lowers abortion rates.

On the other hand, Lyle Denniston wrote at the nonpartisan SCOTUSblog, “Chief Justice John G. Roberts, Jr., used the word as Kennedy had, in plain sympathy to the challengers.” Justice Thomas did not speak, a regular practice of his, but has reliably ruled in favor of religious conscience rights in the past.

Travis Weber of the Family Research Center said, if justices were "to rule for the Obama administration in this case, the court would be signing off on the idea that the government can judge matters of religious doctrine sufficiently to determine whether they have been substantially burdened. That's not the American way and it's not what Americans want."

One of the plaintiffs, Fr. Frank Pavone, national director of Priests for Life, also weighed in after attending the hearing this morning.

“I thought our arguments went well,” he said. “At issue here is that the government, even as they tell us we can 'opt-out' of the requirement to cover early abortions in our health insurance plans, are still making us complicit in that coverage. They are, as the Chief Justice himself asserted this morning, hijacking our insurance policies.”

“The message of this case is simple,” he said. “The government should never force believers to choose between following their faith and following the law!”

The case, Zubik v. Burwell, combines seven lawsuits from 37 organizations, including Priests for Life and the Little Sisters of the Poor, into one overall case on the HHS mandate and its opt-out provisions. If the court deadlocks, the most likely outcome would be that the patchwork of lower court rulings would remain in place. In most courts, judges upheld the opt-out process as not imposing an undue burden, but some judges disagreed.

The underlying question could be brought before a court after Justice Scalia's empty seat is filled.

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