Contraception-Opposed Nuns Fight for Standing in State Challenge

Little Sisters of the Poor outside the U.S. Supreme Court after oral arguments for their case against the contraception mandate in the federal health care law. (Photo courtesy of the Becket Fund for Religious Liberty)

PHILADELPHIA (CN) – The Third Circuit seemed inclined Friday to let Catholic nuns intervene in a legal battle between states and the Trump administration over the contraceptive mandate in the federal health care law.

Before making their way to the federal appeals court in Philadelphia this morning, the Little Sisters of the Poor Saints Peter and Paul Home entered the national stage in the last administration as one of the religious nonprofits that fought the contraception mandate at the U.S. Supreme Court.

But the nuns’ days of trekking to court appeared behind them last year when President Donald Trump signed a May 2017 executive order that authorized conscience-based objections to the so-called Obamacare mandates.

As states like California and Pennsylvania brought challenges to this executive order in court, however, the nuns fought to intervene, asserting a “significant protectable interest at stake” in the Pennsylvania lawsuit.

They headed to the Third Circuit this year after a federal judge turned them down, finding the nuns had minimal interests in the Pennsylvania litigation, particularly since the Trump administration also seeks to overturn the contraception mandate.

At this morning’s hearing, some of the judges expressed concern that denying intervention here would deprive the nuns of the ability to participate in a lawsuit that directly impacts them.

U.S. Circuit Judge Stephanos Bibas wondered whether it was fair to ask the nuns to “rest on their laurels” and await the outcome of the state challenge since it is unclear how long the exemptions created by the Supreme Court case would last.

U.S. Circuit Judge Thomas Hardiman echoed that sentiment, noting that defeat for the Trump administration in the Pennsylvania case could trigger a chain of events that would  end with the Little Sisters losing their exemptions.

“Then they lost the game and they were never allowed to participate,” Hardiman said.

The third member of Monday’s panel, U.S. Circuit Judge Jane Roth, seemed to lean the other way, asking whether it was more beneficial to prevent the Little Sisters from intervening until the underlying appeal over the interim rules was resolved. If the two rules are overturned, then the Little Sisters’ whole premise for intervening “goes away,” she said.

Michael Fischer, an attorney in the Pennsylvania Attorney General’s office, stressed that no matter the outcome of the states’ challenge, there will be no change that the Little Sisters will be subject to fines for failing to comply with the contraceptive mandate.

“I’m not aware of any expiration date on Supreme Court decisions,” Fischer said.

Both Bibas and Hardiman seemed worried, however, about opening the floodgates to allow anyone objecting to the contraceptive mandate to file briefs in the case.

“If we let you in at all, shouldn’t it be limited to the nonprofit piece of this?” Bibas asked.

Lori Windham, a senior counsel with the religious liberty nonprofit organization Becket, argued that the Little Sisters had arguments beyond what Trump lawyers wanted to make, including constitutional challenges and that the government does not have to power to regulate third-party administrators.

She noted that the states’ challenge is “designed to undermine Zubik,” referring to the 2016 Supreme Court case Zubik v. Burwell.

Windham also said Pennsylvania had tipped its hand in arguing the exemptions are per se invalid sine they privilege religious interests over other interests.

“I don’t see how Pennsylvania can make those claims and then say the Little Sisters’ interests are not at stake,” she said.

Pennsylvania has argued that the state would be on the hook to pay for contraceptives for its 2.5 million women if Trump eases the mandate.

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