"I didn't understand the problem at the time of [the first hearing], and I don't think I understand it now," Roberts said. Later on, Breyer echoed his confusion, "I don't understand why this can't be worked out."
Paul Clement, representing the Sisters, responded to Roberts that by filling out the form expressing their religious objection to the government, the nuns were essentially giving a "permission slip" for birth control to be provided to employees. Given the threat of heavy fines if they didn't comply with the accommodation, this put a substantial burden on their religious practice, he said.
There was no mechanism, outside of a religious exemption, to come to an agreement, Clement said, because the requirement of the ACA mandate for "seamless" contraceptive coverage through the Little Sisters' health plans.
The Trump administration in 2017 offered a religious and a moral exemption to the mandate, but the states of Pennsylvania and California subsequently sued, saying that the administration violated the Administrative Procedure Act in carving out the religious exemptions which they said contradicted the compelling state interest in providing contraceptive coverage.
In 2018, the Supreme Court allowed the Little Sisters to intervene in the cases in California and Pennsylvania; both the Third and Ninth Circuit Courts ruled against them, and in January the Supreme Court agreed to hear the matter.
The states "dragged us back to court to defend our hard-won religious exemption," Sister Loraine said on Wednesday, noting that for seven years, the legal battle over the mandate has "hung over our ministry like a storm cloud."
Clement told the court on Wednesday that there is a lack of injury from the sisters refusal to comply with the mandate, noting that "we have not heard of even a single employee who views this as a problem."
Michael Fischer, chief deputy attorney general for the state of Pennsylvania, said the sisters' health insurance plans were not "being hijacked" by the state, noting that the order is protected by an injunction, and that the state's case was against the Trump administration's religious exemptions which put a cost on the states.
Fischer argued for a more restrictive view of religious exemptions than the Obama administration's original mandate which initially exempted churches and their integrated auxiliaries. Fischer argued that health plans of church ministers could be religiously exempt from the mandate, but not those of church employees like janitors.
Some justices were critical of the religious exemption and the nuns' argument.
Justice Ruth Bader Ginsburg said the Trump administration's religious exemption "tossed to the wind entirely Congress' instructions" that women receive "seamless, no-cost, comprehensive coverage" for contraceptives and sterilizations.
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Justice Sonia Sotomayor asked Clement whether an employer could refuse to provide mandatory COVID-19 vaccine coverage if they had a religious objection to vaccination. Clement replied that they could.