The Little Sisters of the Poor and other religious charities should be free to carry out their ministries without having to violate their religious beliefs, plaintiffs argued at the Supreme Court on Wednesday. 

“This morning we heard the justices of the Supreme Court comment on the fact that members of many minority religions across the country have stood with the Little Sisters of the Poor, asking the government to do the very simple and right thing here, which is just if the government wants to provide these [contraceptive] services, the government is free to provide them,” stated Mark Rienzi, lead attorney for the Little Sisters of the Poor, at a press conference outside the Court after the oral arguments in Zubik v. Burwell.  

The government has other ways to provide contraceptive coverage for employees than forcing religious non-profits to do so, he stressed.

“And in every other court case where the government has come before this court and talked about its [health] exchanges, it has told the Court that they are wonderful, they are cheap, they are easy to use, they are affordable, they are great. And all the Little Sisters are asking today is that the government uses all its other programs to provide the services it wants.”

The case Zubik v. Burwell is a combination of seven cases before the court against the “accommodation” offered to religious non-profits by the Obama administration regarding its federal contraception mandate. Plaintiffs include the Little Sisters of the Poor, the Archdiocese of Washington, Bishop David Zubik of Pittsburgh, and several Christian colleges. 

Employers have to include contraception coverage in their employee health plans, according to the mandate. Only churches and their auxiliaries are exempt, thus forcing many religious charities and non-profits like the Little Sisters to provide the coverage they believe to be morally objectionable. 

The administration’s “accommodation” is a process by which objecting parties send a form to the government notifying them of their objection. The government then instructs the party’s insurance company — or third-party authority for self-insured entities — to provide the coverage separately. This separates the charities from the objectionable process of providing contraception coverage, the government contends.

Paul D. Clement, arguing for the Little Sisters and their fellow petitioners before the court on Wednesday, said this process still demands more than a simple opt-out. It forces the Little Sisters and other religious charities to fill out a form they know will ultimately facilitate access to birth control against their religious beliefs, he said.

The government also enforces this measure with “massive penalties,” he added. The Little Sisters could pay up to $70 million a year in fines if the mandate goes into effect and they do not comply with accommodation. 

However, Justice Ruth Bader Ginsburg argued during the hearing, “the insurer or the TPA is then not dealing with the employer at all.” The employer “could say, ‘I fill out the form. I do not authorize. I do not permit. It won't make any difference’.”

“It makes all the difference, Justice Ginsburg,” Clement countered. “If we don’t provide the form, then the coverage doesn’t flow.” 

Justice Sonia Sotomayor responded that tension between laws and the religious beliefs of persons is inevitable, and that if all requests for religious exemption from laws were honored, government actions could not be enforceable. 

“Because every believer that's ever come before us, including the people in the military, are saying that ‘my soul will be damned in some way’,” she said of requests for religious exemptions from laws and actions like a military draft. If that burden will “always” be “substantial,” she added, and all religious exemptions are honored, “how will we ever have a government that functions?”

Aside from a cloistered monk or hermit, Justice Stephen Breyer noted, a “religious person” living in society may “have to accept all kinds of things that are just terrible for him.” Quakers must pay taxes for a war they conscientiously object to, he said. Religious people against blasphemy might not like First Amendment protections of it. 

Noel Francisco, also arguing for the plaintiffs, said that religious non-profits should get the same protections as churches, which are exempt from the mandate. 

Justice Elena Kagan pressed him on expanding religious exemptions to charities and non-profits. 

“I thought there was a very strong tradition in this country, which is that when it comes to religious exercises, churches are special,” she said. If these religious protections are expanded to include “all religious people,” she argued, “then the effect of that is that Congress just decides not to give an exemption at all.”

Francisco also argued that because the health care law exempts many entities like small businesses from having to provide health insurance, and exempts the plans of large corporations from the mandate by “grandfathering” them in to the health care law’s regulations, the government may not be able to establish a “compelling interest” for contraception coverage since so many health plans don’t provide it. 

Even if it does establish this interest, he continued, it has other means of facilitating access to contraception including through plans on the public exchanges that offer contraception coverage or through Title X family planning funding. 

Another point of contention was the fact that, according to the IRS tax code, churches and their auxiliaries are exempt from the HHS mandate but religious non-profits, who must fill out a 990 form, are not. 

The plaintiffs argued that there is no essential difference between these groups and both should receive exemptions because of their religious status. “The line they’ve drawn here is absurd,” Clement said of the administration exempting churches and their integrated auxiliaries but not religious non-profits. 

There is no substantial difference between these groups, he added; the only difference is that one group, non-profits, fills out a 990 form.

Solicitor General Donald Verrilli, arguing for the administration, said the government has a compelling interest to require employer-based contraception coverage, and every alternative that has been proposed defeats Congress’ purpose of ensuring low-cost birth control access for all women without the hassle of co-pays or obtaining separate health plans for contraception. 

Furthermore, he cited an Institute of Medicine report claiming that widespread contraception access was in the public good, lowering the number of unintended pregnancies and abortions. 

Chief Justice John Roberts discussed whether the mandate posed a substantial burden on the plaintiffs by “hijacking” their own health plans. Clement had argued that the government was indeed hijacking the insurance plans, saying that “it’s a little rich for the government to say ‘this isn’t your plan, don’t worry about this’.”

“In other words, the Petitioner has used the phrase ‘hijacking,’ and it seems to me that that's an accurate description of what the government wants to do,” Roberts said. “They want to use the [insurance] mechanism that the Little Sisters and the other Petitioners have set up to provide services because they want the [contraception] coverage to be seamless.”

The Little Sisters “do not object to the fact that the people who work for them will have these services provided,” he added. “They object to having them provided through the mechanism that they have set up because they think, you know, whether you or I or anybody else thinks, they think that that complicity is sinful.”

“Can you explain why you don't see this as a hijacking?” Justice Sotomayor asked Verrilli. 

Verrilli argued that the government is “ensuring” that employees “get what the law entitles them to,” while “ensuring” that employers do “not have any legal obligation to pay for the coverage, to provide the coverage in any way.”

The funding for the contraception coverage is done separately from the employer, he argued. The insurer is listing the coverage cost separately from the other employer-provided coverage. 

However, Justice Alito noted, the sisters’ third-party insurance issuer would also not comply with the mandate if it is enforced. 

And many religious groups, including some Muslims, Mormons, and Orthodox Jews and American Indians, have supported the Little Sisters saying the mandate and its so-called accommodation present an “unprecedented threat to religious liberty in this country.”

“Ladies and gentleman, the fate of the Little Sisters is the fate of every American,” Kristina Arriaga, executive director of the Becket Fund, stated outside the court after Wednesday’s arguments.

“They [the Little Sisters] serve the poor, they feed the hungry. We at Becket join millions of Americans who are asking the Court to let them serve,” she added.