The Little Sisters of the Poor is a religious order that runs nursing homes for the poor. They’re back at the U.S. Supreme Court to, hopefully, conclude their nearly-8-year battle against the ObamaCare contraceptive mandate obligating these nuns to provide their employees with birth control.
Under the Affordable Care Act, workplace health plans are supposed to cover “preventative care,” which the Obama Administration said meant birth control, with no out-of-pocket costs. Churches are exempt and the Hobby Lobby case won exemptions for closely held businesses whose owners hold faith-based objections to the mandate. For Hobby Lobby the issue was that some contraceptives work by causing abortions.
The Obama Administration created an “accommodation” that provided cost-free contraception through alternate means. The Little Sisters argue they need an exemption, not an alternate way to comply with the contraceptive mandate.
In 2016 the high court agreed to hear Zubick v. Burwell, a case that involved the sisters and other non-profits who sincerely object to paying for contraceptives. Upon the death of Justice Antonin Scalia, to avoid a 4-4 split, the Court opted not to rule on the merits and instead vacated the lower court cases and sent them back to their respective states to consider, based on the accommodation.
In 2017, the Trump Administration issued new rules providing even broader protections to the Little Sisters and other employers with religious and moral objections to the mandate.
Pennsylvania, where the Little Sisters is headquartered, and New Jersey sued, arguing that the Trump Administration exceeded its power and that the opt-out proposed by the government “does not substantially burden religious exercise.”
Last week, the justices heard oral arguments via teleconference with Justice Ruth Bader Ginsburg dialing in from her hospital bed.
The current pandemic makes the Little Sisters’ work more difficult and much riskier. The Justices would do well to hand them a sweeping victory so they can continue the work we as a society need them to do.