- The Washington Times - Sunday, March 20, 2016

Black robes will be de rigueur Wednesday, when the U.S. Supreme Court hears Zubik v. Burwell, a case pitting nuns against the Department of Health and Human Services’ contraceptive mandate.

The Little Sisters of the Poor, a Catholic order that cares for the impoverished elderly, and six other petitioners argue that Health and Human Services’ “accommodation” from the mandate violates the Religious Freedom Restoration Act by substantially burdening their free exercise of religion.

Even if the religious burden furthers a compelling state interest, petitioners argue, it violates the religious freedom act by not doing so through the least restrictive means possible.

“The government has ample ways to distribute these services without us — and their brief says those ways are perfectly fine for the tens of millions of people covered by all the other exemptions it handed out,” Sister Loraine Marie Maguire, mother provincial of the Little Sisters of the Poor, said in a press release. “I don’t understand why the government can’t just use the same system and programs it already has in place and leave us Little Sisters to our work of caring for the elderly poor as we have for 175 years.”

She pointed out that several major corporations already have been excused from the mandate, even though they are not religious.

“The government already exempts 1 in 3 Americans from this mandate, and it has given big government programs and big companies like Exxon and Visa the freedom to decide not to comply with the mandate, even just for reasons of cost or convenience,” Sister Loraine said. “Protecting our ability to care for the elderly poor ought to be at least as important as helping big business save a few dollars.”

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In the wake of the Hobby Lobby v. Burwell decision, Health and Human Services created three categories for determining how to implement Obamacare’s contraceptive mandate: (1) houses of worship, (2) religiously affiliated nonprofits or closely held corporations, and (3) all other organizations.

The first category is exempt from the contraceptive mandate, while for the third it is mandatory. But HHS carved out an accommodation for the second group, whereby organizations notify the insurer, plan administrator or HHS of their religious objection to the law and are supposedly released from providing or paying for the contraceptive coverage.

But groups like the Little Sisters say the accommodation requires them to take active steps to provide potentially abortion-inducing drugs to their employees — steps they say violate their religious beliefs. And although the accommodation stipulates that insurance companies will foot the bill for the contraceptives, petitioners argue those costs will be reflected in their premiums.

David Cortman, senior counsel for the Alliance Defending Freedom, which represents a coalition of Christian colleges and universities in two of the cases consolidated before the Supreme Court, said religious nonprofits are still left with no viable option.

“The administration continues to impose the same unacceptable choice: obey and abandon your freedom, or resist and be punished,” Mr. Cortman said in a press release. “The Obama administration has offered no option to religious non-profits that allows them to act consistent with their faith.”

But Marci Hamilton, professor at the Benjamin N. Cardozo School of Law at Yeshiva University, said the nuns face an uphill battle, arguing they are not being asked to violate their religious beliefs by allowing their employees access to contraception.

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“It’s not that there’s anyone saying that the university or the Little Sisters of the Poor themselves would ever have to use or touch contraception,” Ms. Hamilton said on a press call. “It’s that one of their employees might.”

She also pointed out that eight of nine circuit courts sided in favor of the government on the issue.

“One circuit has gone the other way, but I think the narrowness of this split — it’s so lopsided — it’s very hard to sell the theory that complicity of my actions is going to make me violate my religion because someone who is not in my religion is going to take an action,” she said. “That, I think, is the hard thing for them to face.”

With the absence of the late Supreme Court Justice Antonin Scalia, a best-case scenario for the Little Sisters is probably a 4-4 split, in which Justice Anthony Kennedy joins his conservative colleagues on the bench.

But SCOTUSblog reporter Lyle Denniston said he believes the court will try at all costs to avoid a split decision, which would uphold the various circuit court rulings and fracture the meaning of the contraceptive mandate by region.

“My own sense is that the Court is going to try very hard, particularly Justice Kennedy is going to try very hard, to find a way to resolve this case without a 4-4 split,” Mr. Denniston said on a press call.

“That may mean that they will try to reach for a narrower opinion, which might be finding that the government’s accommodation is not the least-restrictive accommodation,” he said.

• Bradford Richardson can be reached at brichardson@washingtontimes.com.

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