They’re the perfect plaintiffs: elderly nuns who wear habits and care for the poor and elderly. When the Little Sisters of the Poor filed a complaint against the Affordable Care Act’s contraceptive mandate in 2013, they joined a host of other religious charities and colleges that claimed the law placed a burden on their free exercise of their religion. But the sisters stood out: If nuns claim a law violates their conscience, who’s to tell them they’re wrong?
On Tuesday, the Tenth Circuit Court of Appeals did just that. A three-member panel of judges ruled that the Obama administration has come up with a sufficient accommodation for religious organizations like the Little Sisters: If they object to providing insurance coverage to employees who want to buy birth control, organizations can sign a two-page form stating that objection. That’s it—from there, the administration will arrange for a third-party provider to make sure the employee can get coverage. But the Little Sisters, along with schools like Notre Dame and other religious organizations, claimed that signing that piece of paper was the moral equivalent of condoning birth control.
“More than a few people who contacted us about our lawsuit have asked us something like this: ‘You are celibates and you take care of the elderly, so obviously contraception has nothing to do with you; why have you taken on this issue?,’” Sister Constance Carolyn of the Little Sisters wrote in an email in March. “As Little Sisters of the Poor we vow to devote our lives specifically to the service of the elderly poor, but the unborn are no less worthy of reverence and protection than the frail seniors we serve every day.”
The Sisters and other religious non-profit groups have claimed protection under the Religious Freedom Restoration Act, or RFRA, which prohibits the federal government from placing a “substantial burden” on a person or group’s exercise of religion. While recognizing the sincerity of the sisters’ claim, the Court ruled that the accommodation “does not substantially burden their religious exercise under RFRA or infringe upon their First Amendment rights.”
During oral arguments, the lawyers and judges focused in on the deceptively simple question at the heart of this case: the meaning of the piece of paper that religious non-profits have to submit to the government—Form 700. Does a formal statement of opposition to birth control which facilitates insurance coverage paradoxically amount to tacit, silent support, they asked? The Little Sisters say yes, but the judges of the Tenth Circuit say no. “Plaintiffs have not shown any likelihood that their sending in the Form or the notification would convey a message of support for contraception,” they write. “The First Amendment does not—and cannot—protect organizations from having to make any and all statements ‘they wish to avoid.’”
This ruling is significant for several reasons. The Tenth Court has joined several other federal appeals courts in rejecting the claims of religious non-profits that don’t want to sign that piece of paper. Within the past two weeks, the Fifth Circuit has rejected claims by East Texas Baptist University and Houston Baptist University, along with the Catholic Diocese of Beaumont and the Catholic Diocese of Ft. Worth. The Seventh Circuit rejected a complaint by Wheaton College, following its rejection of a complaint made by Notre Dame earlier this spring. And last winter, the D.C. Circuit similarly rejected claims by two Catholic groups: Priests for Life and the Archdiocese of Washington.
“Judges aren't qualified to tell nuns what the right answers are on question of moral complicity.”
Already, several of these cases have been appealed to the Supreme Court. Daniel Blomberg, a lawyer at the Becket Fund who is representing the Little Sisters, said in an emailed statement: “We will keep on fighting for the Little Sisters, even if that means having to go all the way to the Supreme Court.” It’s also possible that the Little Sisters case could be referred for consideration by the full twelve-member panel of judges in the Tenth Circuit Court.
Even though these cases haven’t been fully litigated yet, these Circuit Court decisions may provide a look at how the “piece of paper test” would be handled by the Supreme Court, if any of these claims get that far. This case is closely tied to the Supreme Court’s ruling in Hobby Lobby last summer, in which the justices ruled that closely held, for-profit corporations can legitimately claim a religious exemption to the contraceptive mandate. To be sure, the two cases are distinct: As the Tenth Circuit judges write, the Hobby Lobby case dealt with for-profits, while cases like Little Sisters deal with non-profits. Hobby Lobby also directly challenged the birth-control mandate in its entirety, while Little Sisters narrowly challenges the non-profit accommodation that the administration devised after months of back-and-forth with religious groups.
But in the Supreme Court’s decision in Hobby Lobby, Justice Samuel Alito specifically states that the administration’s accommodation for religious groups “does not impinge on the plaintiffs’ religious beliefs.” He suggests the government could extend this accommodation to for-profit groups as a way of honoring their religious objections while still protecting the government’s public-health interests. And, in fact, that’s exactly what the administration has done: On Friday, it rolled out new guidelines for all groups that wish to be exempt from the birth-control-coverage requirement, offering them the chance to sign a piece of paper stating their objection and be relieved of their obligation to cover any contraception.
Mark Rienzi, another of the lawyers at the Becket Fund, said the Tenth Circuit got the decision wrong in two ways. First, he said, the judges misinterpreted the mechanism through which birth-control coverage would be provided after the accommodation is triggered. The Little Sisters case is unique, and complicated, in that it involves not one, but two religious groups: The sisters rely on a group called Christian Brothers Services as their third-party insurance administrator. If the sisters asked for an accommodation by filling out Form 700, the judges write, Christian Brothers could simply refuse to provide birth-control coverage; it’s exempt from certain labor regulations because it’s a religious group. Rienzi said this is wrong; once the accommodation is triggered, other private organizations get involved in providing coverage, not just Christian Brothers. But on a bigger level, he said, the judges misinterpreted the spirit of RFRA. “The nuns think they're morally complicit, and the judges say, ‘No, no, no,’” he said. “Judges aren't qualified to tell nuns what the right answers are on question of moral complicity.”
This, ultimately, is why the Little Sisters case is so interesting, and why this ruling is so important: The nuns really and truly believe that the administration’s religious accommodation requires them to violate their belief in the sanctity of life. So far, multiple Circuit Courts have responded: tough. The question is: What will the sisters do now?
“On the HHS mandate issue, the government basically forced us into a corner,” Sister Constance wrote in an email in March. “We have no desire to litigate against our government, but we had no choice because we cannot participate in the moral evil of providing or facilitating the provision of abortion and contraception. So the government has put us in a very real bind.”