Little Sisters to Supreme Court: Don't make us pick between faith and the poor

Little Sisters of the Poor Courtesy of the Becket Fund for Religious Liberty CNA 1 5 16 Little Sisters of the Poor. Courtesy of the Becket Fund for Religious Liberty.

Religious sisters should not be forced to choose between caring for the poor and obeying their conscience, the Little Sisters of the Poor told the Supreme Court in a recent legal brief, adding that this is what the government is demanding of them through the HHS mandate.

"As Little Sisters of the Poor, we offer the neediest elderly of every race and religion a home where they are welcomed as Christ," said Sister Loraine Marie Maguire, mother provincial of the Little Sisters of the Poor.

"We perform this loving ministry because of our faith," she continued, adding that the Little Sisters "cannot possibly choose between our care for the elderly poor and our faith, and we shouldn't have to."

Sister Maguire's comments came Jan. 4, as the Little Sisters filed their Supreme Court brief against the federal contraception mandate.

The case will be heard this Supreme Court term as part of a bundle of cases against the administration's contraceptive mandate. Representing the Little Sisters and several other plaintiffs in the case is the Becket Fund for Religious Liberty, which filed the brief before the court on Monday.

At issue is a mandate from the Department of Health and Human Services requiring employers to offer health plans covering free contraception, sterilization and some drugs that can cause early abortions.

The Obama administration established narrow religious exemptions for houses of worship and their affiliated groups, but many religiously-affiliated charities, non-profits, and businesses that morally objected to the mandate were required to abide by it.

In response to widespread protest and lawsuits from hundreds of plaintiffs across the country, the administration later offered an "accommodation" to certain objecting religious non-profits, under which they could notify their insurer of their conscientious objection, and the insurer would then fund the coverage.

Critics charged that the financial costs for the objectionable coverage would still be passed on to the employers, and the groups said they would still be forced to act against their religious beliefs by having to "facilitate access" to the services.

Many religious non-profits – including charities, schools, and dioceses – took their cases against the mandate to court. The Little Sisters lost their case at the Tenth Circuit Court of Appeals in July 2015 after the court ruled that the "accommodation" offered to the sisters did not substantially burden their sincerely-held religious beliefs.

The sisters applied for and received an injunction from the mandate in August, and in November the Supreme Court agreed to hear their case along with the other plaintiffs.

Pope Francis offered a gesture of support for the sisters when he made an unscheduled stop Sept. 23 at their Jeanne Jugan Residence for the low-income elderly in Washington, D.C. during his U.S. visit. The visit was meant as a "sign of support" for the sisters as the Supreme Court was considering taking their case, director of the Holy See Press Office Fr. Federico Lombardi later confirmed to the media.

Ultimately, the brief claims that the government is violating federal law by speaking for the sisters in saying that the accommodation is compatible with their religious beliefs.

The federal law in question, the 1993 Religious Freedom Restoration Act, provides that when a government action violates a person's sincerely-held religious beliefs, the burden of proof is on the government to establish that the action furthers a compelling state interest and is the least-restrictive means of doing so.

Furthermore, though the government may disagree with the person's religious objections, it may not determine for that person that his conscientious objection is groundless, the brief says.

The administration "wants petitioners to do precisely what their sincere religious beliefs forbid –and it is threatening them with draconian penalties unless they do so," the document states. "The government's refusal to acknowledge as much is nothing more than a forbidden attempt to secondguess petitioners' sincere religious beliefs that the actions the government has demanded of them would constitute sin."

Additionally, the fact that the administration exempted some employers from the mandate for other reasons undermines their claim that contraception coverage is a compelling interest, since they are not requiring all employers to provide it, the brief claims.

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For instance, the health care law exempted "grandfathered plans," or certain health plans that existed before the law was passed, from having to follow the preventive services mandate, even though it required those plans to offer other coverage benefits, the brief says.

This means that many current plans offered by companies with 200 or more employees are exempt from the contraception mandate, while small businesses with 50 or less employees are exempt from having to provide health insurance altogether.

Furthermore, houses of worship – even those that do not object to the mandate – are exempt from it, meaning that a church could refuse to provide contraception coverage simply out of convenience and not face a penalty.

"If its interests were truly compelling, the government would not exempt the employers of tens of millions of employees from the mandate for mere administrative convenience," the brief states.

"All we ask is that our rights not be taken away," Sister Maguire said. "The government exempts large corporations, small businesses, and other religious ministries from what they are imposing on us – we just want to keep serving the elderly poor as we have always done for 175 years."

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