Appeals court rules against Little Sisters' exemption from HHS mandate

San Francisco, Calif., Oct 23, 2019 / 01:26 pm (CNA).- Attorneys for the Little Sisters of the Poor reiterated their call for the U.S. Supreme Court to step in after a second appeals court ruled against the sisters’ exemption from the federal contraception mandate.

“The Little Sisters never wanted this fight and have spent 8 years trying to focus on caring for the elderly poor instead of fighting senseless legal battles. The states in these lawsuits should leave the nuns alone,” said Montse Alvarado, vice president and executive director of Becket, the law firm representing the sisters.

In an Oct. 22 statement on Twitter, Alvarado noted that Becket and the U.S. Solicitor General have asked the Supreme Court to review the matter.

“It must step in to fix the mess and secure #religiousfreedom for the Little Sisters,” she said. “Enough is enough.”

The Ninth Circuit Court of Appeals ruled against the Little Sisters of the Poor on Oct. 22, joining the Third Circuit, which in July also ruled against the order and other pro-life organizations that benefitted from a religious exemption policy against the requirements of the HHS Mandate.

The mandate, initially issued by the Obama administration under the Affordable Care Act, requires employers to offer health insurance plans covering free contraception, sterilization, and some early abortion drugs.

“The panel affirmed the district court’s preliminary injunction barring enforcement in several states of final federal agency rules that exempt employers with religious and moral objections from the Affordable Care Act’s requirement that group health plans cover contraceptive care without cost sharing,” said the Ninth Circuit decision.

The ruling was made by Circuit Judges J. Clifford Wallace, Andrew J. Kleinfeld, and Susan P. Graber. Wallace authored the majority opinion, and Kleinfeld dissented.

“We acknowledge that we are in uncharted waters,” says the opinion. “The Supreme Court has yet to address the effect of a nationwide preliminary injunction on an appeal involving a preliminary injunction of limited scope.”

The opinion says the judges would “welcome guidance from the Supreme Court.”

The contraception mandate has been controversial since it was first unveiled in 2011, prompting lawsuits from more than 100 private individuals, religious organizations, states and for-profit businesses who held religious objections to its terms.

The Little Sisters of the Poor, a Catholic religious order dedicated to the care of the elderly poor, did not qualify for the religious exemption included in the original mandate, which was reserved for houses of worship and their direct affiliates.

Five years after the announcement of the mandate, the Supreme Court ruled in favor of the Little Sisters, and ordered that a workaround be developed that appeased all sides. The Trump administration created a new religious exemption rule that exempted those with religious or moral objections to contraception from having to provide it through their insurance plans.

This rule is being challenged in court, as 14 states have argued that the sisters should not receive an exemption from the mandate.

“The states are arguing that even though there’s injunctions in the mandate in the Little Sisters’ case in this country, it violated the law for the federal government to issue a religious exemption,” Diana Verm, senior counsel with Becket, told CNA in early October.

“The Little Sisters just want to go back to serving the elderly poor,” said Verm. “If the Supreme Court rules in their favor, they’ll be able to do so.”

Lawyers for the Little Sisters of the Poor have noted that those opposing them have yet to present an example of a woman who was unable to access birth control due to the views of her employer.