- The Washington Times - Wednesday, May 6, 2020

A Catholic women’s religious order returned Wednesday to the Supreme Court to argue for the Trump administration’s exemption of employers with religious or moral concerns from Obamacare requirements to provide birth control in their employees’ health insurance plans.

In oral arguments given by telephone, attorneys for the Little Sisters of the Poor said the Affordable Care Act’s work-around to provide birth control amounts to an unconstitutional “hijacking” of an employer’s insurance policy and protected beliefs.

“No, the Little Sisters don’t have any objection if their employees receive those services from some other means,” said attorney Paul D. Clement. “Their objection essentially is to having their plans hijacked and being forced to provide those services through their own plan and plan infrastructure.”

The Little Sisters, who number more than 2,000 among dozens of U.S. convents, first challenged the Obamacare mandate before the Supreme Court in 2016. The justices remanded the case to a lower court and urged the government and the religious order to resolve their differences.

Obamacare allows an employer to notify its insurer or the government of its opposition to providing birth control, and the government then provides a subsidy to the employee to buy contraception. The Little Sisters argue that the process makes them morally complicit in violating their belief against contraception.

“Their [Little Sisters’] understanding of moral complicity is wrong?” Justice Samuel A. Alito Jr. asked during a tense exchange with an attorney representing the state of Pennsylvania.

“No, we’re not saying that at all,” said Michael J. Fischer, Pennsylvania’s chief deputy attorney general. “What we do challenge is whether … what they are saying rises to the level of a substantial burden, which is, ultimately, a legal test.”

In 2017, the Trump administration issued a new rule by invoking the 1993 Religious Freedom Restoration Act, stating that employers could object to paying for employees’ birth control on religious or moral grounds.

Pennsylvania and New Jersey quickly filed lawsuits, securing a nationwide injunction in federal court.

That injunction evoked several questions Wednesday from normally taciturn Justice Clarence Thomas.

“I’d like you to have an opportunity to comment on the questionable standing of the states in this case, as well as the proliferation of national, nationwide injunctions,” Justice Thomas said.

“The one thing we should have learned from years of litigation over the Affordable Care Act and its contraceptive mandate in particular is that the courts do not come to uniform decisions in this area,” Mr. Clement said.

Wednesday’s hearing was the justices’ third this week conducted by telephone because of the coronavirus pandemic. This week’s oral arguments also have been broadcast for the first time over C-SPAN.

Justice Ruth Bader Ginsburg phoned Wednesday from Johns Hopkins Hospital in Baltimore, where she was taken Tuesday for treatment for a gallbladder infection.

“The glaring feature of what the government has done in expanding [President Trump’s] exemption is to toss to the winds entirely Congress’s instruction that women need and shall have seamless, no-cost, comprehensive [health] coverage,” said Justice Ginsburg, who spoke frequently and at-length during Wednesday’s arguments.

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