Case Name: Combined Case Referred to as Zubik V. Burwell
At Issue: Life Issues; Religious Freedom; Religious Freedom Restoration Act NEW: High Court Orders Compromise
May 16, 2016
The U.S. Supreme Court sent all of the cases, comprising the Zubick v. Burwell appeal (which includes Little Sisters of the Poor and over two dozen other religious persons and entities in seven separate cases) back down to the U.S. Courts of Appeals from whence they came, with instructions to give the religious parties and the government an opportunity to settle the case in a way that satisfies all parties. The Supreme Court did not decide any of the actual constitutional and legal questions presented to them at this time.
Purpose of Sending it Back to Court of Appeals
After oral arguments in March, the Supreme Court took the unusual step of requesting additional briefings from the parties on whether there was a compromise available, which would preserve the religious conscience of the religious parties, and yet accomplish the government’s goal of providing free contraceptives to their employees as part of the HHS mandate regarding “preventive” services covered under ObamaCare. The briefs revealed the religious parties suggested several ways that a compromise could be accomplished, and the government reluctantly agreed.
What This Means For Pro-Life Organizations
With only eight sitting justices, and the problems that would have been created by a 4-4 tie decision in this case, this result isactually a positive one for us. We may not hear any more news on these cases for several months.
In the event that no compromise is reached, we will probably see a new round of decisions coming out of the various Courts of Appeals involved, and perhaps another journey back to the Supreme Court. Should this happen, we expect the new president to have nominated a replacement for Justice Scalia, so the Court can have its full complement of nine justices.
There are many more than just the two dozen religious entities interested in this case. In addition to the parties that made it all the way to the Supreme Court in the Zubik v. Burwell case, there are dozens more that were/are involved in lower court decisions that will be affected by whatever compromise settlement is reached.
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March 28, 2016: Following oral arguments, the U.S. Supreme Court took the unusual step of asking the parties to file additional briefs on the question of whether there was any acceptable procedure or method by which contraceptives could be provided through the insurance companies used by Little Sisters of the Poor and the other nonprofit organizations that wouldn’t violate their religious conscience.
The Court may be looking for a way to resolve this case in a way that meets the government’s needs without violating the conscience of the religious nonprofits. This may also indicate that the Court is currently facing a 4-4 tie vote and is seeking a way to resolve it.
The Little Sistersof the Poor v. Burwell appeal that was heard by the U.S. Supreme Court is one of seven cases involving more than 30 individuals and organizations challenging the U. S. Department of Health and Human Services' contraception mandate as a violation of the federal Religious Freedom Restoration Act (RFRA). Going forward, the Court will use one name for all of these cases and parties: Zubik v. Burwell.
Summary of Argument
Courts and government officials have no business questioning or second-guessing the validity of sincerely-held religious beliefs. RFRA was designed to reflect that principle of religious freedom. Summary of Argument: The contraception mandate violates the ministry’s rights under RFRA.
Oral Argument Scheduled
The U.S. Supreme Court is scheduled to hear oral arguments in this case on March 23, 2016. A Supreme Court ruling is likely in June 2016 ― unless the case is carried over to next year, due to the effect Justice Scalia's death will have on the Court's vote in this case (More on that below).
Who Are The Little Sisters Of The Poor?
The Little Sisters of the Poor are the lead plaintiffs in one of the several cases, which have been consolidated into one for purposes of the Supreme Court oral argument and decision. The Little Sisters are an international congregation of Roman Catholic nuns and women who are dedicated to caring for the neediest elderly of every race and religion. They have a sincere religious objection to being forced to provide contraceptives, including possible abortion-causing contraceptives, in their employee health plan, as required by the federal government's regulations implementing ObamaCare. They also reject the government's so-called "accommodation" for their religious objection, since it does not ― in their hearts and minds ― eliminate the moral complicity in sin they believe the HHS mandate is imposing on them.
What's This Case About?
This case is similar, in certain respects, to the 2014 Supreme Court decision in the Hobby Lobby and Conestoga Wood Specialties cases. The primary issue ― then and now ― is whether a regulation created by the U.S. Department of Health and Human Services (HHS) to implement ObamaCare (referred to as the "HHS mandate") violates the Religious Freedom Restoration Act (RFRA) ― a law that protects the free exercise of religion.
In essence, the HHS mandate violates RFRA by forcing employers to provide possible abortion-causing drugs in company health plans contrary to the deeply held religious beliefs of the company owners. The Supreme Court in 2014 decided the mandate does violate RFRA in how it affects for-profitbusinesses, and gave Hobby Lobby and Conestoga Wood Specialties ― and all other for-profit, family businesses, who operate on faith-based principles ― a major religious freedom victory.
Religious Freedom Implications
On a larger scale, the Little Sisters of the Poor case raises an important question on the tension between religious freedom and government programs. That is: Does the federal government have the right to brush aside the moral objections of religious nonprofits (or any religious person or organization for that matter), to force a pro-abortion, morally repugnant program on people and organizations which stand for the opposite ideal – the sanctity of life?
How Is This Case Different From The Hobby Lobby Case?
The short answer is that Hobby Lobby involved only the mandate's effect on for-profit businesses, and this case is about religious nonprofits. A more thorough explanation follows:
HHS, in its original regulations concerning contraceptives, created three classes of conscience protection based on the type of employer:
Churches were granted a complete exemption from the mandate;
"For-profit" employers, such as Hobby Lobby, were granted no religious conscience exemption from the mandate, even though they ran their businesses based on religious principles; and
Religious nonprofit organizations (e.g., ministries, denominations, religious schools, etc.,including Little Sisters of the Poor, Geneva College and Priests for Life) were classified in a third category, whereby their beliefs would be what the government termed "accommodated" up to a certain point.
It is this third class of employers who are now suing the federal government, claiming the "accommodation" process itself places an unacceptable burden on their religious exercise.
What Exactly Is The "Accommodation" Process ― And Why Is It A Religious Freedom Issue?
The "accommodation" is supposed to work like this: A religious nonprofit, such as Little Sisters of the Poor, which objects to being forced to provide possible abortion-causing drugs in its health plan, can sign a government form or inform HHS of its opposition. Then, HHS will inform Little Sisters' insurance company (or the "plan administrator," if they are a self-funded health plan) that the insurer or plan administrator must provide the possible abortifacients to the nonprofit organizations' employees at no cost.
In a nutshell, the government argues that this paperwork "shuffle," which supposedly results in "no cost" to the employer, protects the religious conscience of Little Sisters of the Poor and other religious nonprofits. However, the reality is the employees are still provided with the objectionable drugs via the company's health plan, which understandably is what caused the Little Sisters' objection in the first place. Little Sisters provided the health plan; the health plan provides coverage for the objectionable drugs; and the employees end up with the objectionable drugs via that health plan. The end result: The Little Sisters sincerely feel as if they are morally complicit in providing the objectionable drugs to their employees.
Little Sisters of the Poor and dozens of other religious nonprofits argue that the "accommodation" process still makes them complicit in an immoral act. The government argues that the government's process does not infringe on the nuns' conscience. Several federal appeals courts have sided with the federal government, while one appeals court has sided with the nonprofits.
The Supreme Court accepted the appeals of several of these cases to resolve this split of opinion between the circuit courts.
What Are The Key Legal Issues To Look For As The Supreme Court Holds Oral Arguments And Then When It Writes A Decision?
Although there are several legal issues surrounding any alleged violation of RFRA, look for these two threads of discussion to dominate the oral argument process, and later in the Court's written opinion:
"Does a court have the authority to decide whether the sincere religious belief of the Little Sisters and other nonprofits regarding their moral complicity in sin is correct?"
The government alleges that the "accommodation" process takes any possible complicity in sin out of the picture for Little Sisters and the other nonprofits; therefore, the government should prevail.
The contrary argument, as the Supreme Court majority opinion in Hobby Lobby pointed out, is courts have no authority to decide that question and must accept the sincere beliefs of the religious employers at face value. If the Supreme Court majority again answers this question "no," then the next question may very well be the deciding question in this case.
"Is the government using the least intrusive (to religious belief and practice) method to advance its interest in furnishing free contraceptives to women by forcing religious employers to provide it?"
When the Supreme Court applies the "balancing test"* ― contained in RFRA ― to this case, a key question it will ask of the government is: "Is the government using the 'least restrictive means' to achieve a compelling government interest?"
If the answer is "no," then Little Sisters and the other nonprofits will undoubtedly win. Stated another way, the Court will look for other methods of delivering contraceptives to women that don't require employers to do so. If they find any, such as using the ObamaCare health exchanges, a national dispensing system or a host of others that are possible, then the government loses and Little Sisters win.
*The RFRA "Balancing Test": For the government to substantially burden the sincere religious belief of a person or organization and still win, it must have a "compelling governmental interest," (i.e., an extremely important one) which must be achieved using the "least restrictive means" available (i.e., if there are other means available that are not a burden on religious exercise, the government must use those means ― not the ones that burden religion).
Where Do The Justices Stand On The Issue of The HHS Mandate And RFRA?
If Justice Scalia were still on the Court, this case might have ended up the way Hobby Lobby and Conestoga Wood Specialties did in 2014, because the lineup of justices would be exactly the same. In 2014, the Court ruled in a 5―4 decision that the HHS mandate violated the religious freedom of the owners of Hobby Lobby and Conestoga Wood Specialties. The five-justice majority included: Chief Justice John Roberts, and Justices Anthony Kennedy, Samuel Alito, and Antonin Scalia. The dissenters were comprised of the four liberals on the Court: Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.
With just eight remaining justices on the bench, following the death of Justice Scalia, there are two possible outcomes should the Court have a split 4―4 decision. First, the Court may decide to leave it that way, which means the lower courts' decisions (and there are several) are affirmed. However, that would likely create more problems than it solves. So, alternatively, the Court may choose to carry the case over to next year, when a new justice is likely to be appointed, and then schedule a re-argument and another, definitive vote.
When Is A Decision Likely?
If the Court's vote does not end in a 4―4 tie, then we can likely expect a decision in mid- to late-June. Because oral argument is taking place so late in the Court's term (which runs from October to June), and because the issues are at least as controversial as they were in Hobby Lobby in 2014, it will probably follow the pattern of previous blockbuster cases and be among the last decisions the Court issues before it recesses in late June.