Supreme Court Considering Little Sisters of the Poor Case

Last week, the U.S. Supreme Court heard oral arguments in the case of Zubik v. Burwell, which consolidates seven cases, including that of the Little Sisters of the Poor, seeking relief from the Obama Administration’s mandate that all new health plans cover abortion-inducing drugs or else face massive and crippling fines. These cases were not solved by the 2014 Hobby Lobby victory because the Obama Administration claims it provided a sufficient “accommodation” for religious non-profit ministries to comply with the mandate. However, many observers believe the Administration’s plan to be an insufficient accounting gimmick

In his questioning of U.S. Solicitor General Donald Verrilli last week, Chief Justice John Roberts succinctly summarized what is at stake:

The point is that it's the form in which the services are provided that you object to, not the fact that they be provided or not, because that's not the question. In other words, the Petitioner has used the phrase “hijacking,” and it seems to me that that's an accurate description of what the government wants to do. They want to use the mechanism that the Little Sisters and the other Petitioners have set up to provide services because they want the coverage to be seamless.

The issue of seamlessness was important, as Paul Clement, formerly solicitor general for President George W. Bush and now the attorney for the Little Sisters, stated, “If it's seamless to the end-user, then I don't think the Little Sisters’ perception that it's seamless to them, and they are, in fact, complicit, is an irrational belief by any stretch.”

While the Justices’ questioning led some to believe that the Court could be headed for a 4-4 split decision, some expressed new hope this week when the Court took the unusual step of asking for more information from the parties about how this impasse could be resolved. A final decision could come in June unless the Court decides to have the case reargued after the vacancy left by the late Justice Antonin Scalia is filled.

More information about this case is available here from NRB member Alliance Defending Freedom (ADF), which is representing several Christian universities that are party to the consolidated Zubik v. Burwell proceeding.

In addition, Hans von Spakovsky and Tiffany Bates of the Heritage Foundation offered their impressions from the Court, including the scene outside. They noted that among those demonstrating, they saw “one side yelling and the other singing hymns.” They added, “The protesters in favor of the government’s position were holding signs saying that their contraceptive choices were none of their ‘bosses’ business’…. If it is none of their bosses’ business, then why is the government forcing their bosses to pay for it?”

By Aaron Mercer, Vice President of Government Relations

Published: April 1, 2016

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