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Nuns Are Battling Birth Control Provision at the US Supreme Court

In a case described as Hobby Lobby 2.0, a Catholic order of nuns known as Little Sisters of the Poor is arguing that Obamacare infringes on their right to religious liberty.
Photo by Jacquelyn Martin/AP

A gaggle of nuns in black and lavender-grey habits sat in the gallery of the US Supreme Court on Tuesday, surrounded by members of the public and clergy during oral arguments in what's come to be known as the Little Sisters of the Poor case. Some have characterized the religious freedom petition as Hobby Lobby 2.0 — a chance to expand the 2014 case in which justices ruled that certain employers with religious objections could opt out from an Obamacare provision that requires them to pay for employee health insurance coverage that includes contraception.


Along with six other petitioners, Little Sisters of the Poor — a Catholic order of nuns that operates nursing homes around the US — is demanding it also be allowed to opt out of providing such insurance. The government automatically exempts churches and other places of worship from obligations to provide contraceptive coverage (as well as "closely-held" corporations with religious owners, since the Hobby Lobby case). Non-profit religious organizations can also opt out, but have to fill in a form — the petitioners say that's not good enough, and essentially makes them complicit in providing contraception.

Although there are seven consolidated cases fighting the current case, known as, Zubik v. Burwell, the Little Sisters of the Poor has become the face of the battle. Nuns are not exactly renowned for requiring or using birth control, after all — and the organization argues that being denied an automatic exemption is an infringement on its members' religious liberty.

But it's not just nuns being denied contraceptive care, argues the government. Little Sisters of the Poor employs a lot of people who aren't nuns — and this decision will also affect many other employees and students who may not share the same religious views as their employer.

Besides, birth control has many uses beyond contraception and is taken by women to treat irregular, heavy, or painful periods, as well as conditions like endometriosis and polycystic ovarian syndrome, which can affect all women — even nuns.


Nuns and supporters of Little Sisters of the Poor rally outside the United States Supreme Court on Wednesday, March 23, 2016 ahead of oral arguments in Zubik v. Burwell. Photo by Liz Fields/VICE News

For conservatives, the case is seen as a pivotal juncture for the future of the Religious Freedom Restoration Act, a federal law passed in 1993 that was intended to prevent the government from forcing citizens to engage in activities that go against their faith. For liberals, it's about where to draw the line between religious freedom, public health, and a woman's right to contraception.

Soon after assuming their seats on the bench Wednesday, the justices — minus staunch conservative Antonin Scalia, who died on February 13 — engaged in heated exchanges with lawyers for both sides in the case. Outside, hundreds of nuns supporting their sisters inside the courtroom sang hymns. A corresponding flock of pro-choice advocates held signs that said "Hands off my healthcare."

Lawyers for Little Sisters of the Poor and other petitioners argued that religious nonprofits should receive the same treatment as churches under President Barack Obama's landmark Affordable Care Act. Under the legislation — which placed obligations on companies or organizations with more than 50 staff members to provide health insurances for them — churches receive automatic exemptions from providing birth control to employees.

Religious nonprofits can also opt out, but must fill out a so-called "accommodation" — a form that explains to the government why each group conscientiously objects to the law's contraception provision. The government then steps in to provide the insurance.


Related: How Hobby Lobby Paved the Way for the Current Rush of Religious Freedom Laws

This has led some liberals and women's rights activists to claim the case is essentially predicated on an objection to filling out a form. As they see it, the petitioners aren't fighting the part of the law that compels them to provide employees with birth control — they merely object to having to participate in the process that allows them to bypass the law.

In essence, the accommodation acts like a permission slip that allows the government to co-opt the employer healthcare plans, so theoretically, it would be the government, not the employers, providing the organization's employees with access to contraceptives, as well as "abortifacients," which are medications that can induce a miscarriage.

The government maintains that the accommodation is adequate, so it should not have to expand automatic exemptions to religious nonprofits. That argument has been backed up by federal appeals courts that made the same ruling seven times before the case wound its way to the Supreme Court.

Additionally, government lawyers argued on Wednesday against proposals to create a separate healthcare exchange for employees of faith-based organizations, saying such a system would place significant burdens on ordinary women who would have to seek out another plan and wouldn't be able to go to their regular gynecologist to obtain contraceptives or even medical advice about birth control.


Outside the courthouse, Sister Loraine Marie Maguire, mother provincial for the Little Sisters of the Poor, told reporters she believed there was a better solution than the government fix — one that didn't involve religious-affiliated employers, no matter how indirectly. She also lamented the fact the government had threatened the organization with $70 million in fines if it did not comply with health care coverage requirements.

"We don't understand why the government is doing this when there is an easy solution that doesn't involve us — it can provide these services on the exchanges," she said, referring to online marketplaces for health insurance that were created by Obamacare.

Related: In a Victory for the White House, the Supreme Court Has Upheld Obamacare Subsidies

The original directive from the Department of Health and Human Services (HHS) on contraceptive healthcare actually fell under a broader Obamacare provision that required employers to "provide coverage" for "preventative services," including "preventative care" for female employees. After a public outcry and protests from religious groups, HHS moved to exempt houses of worship and some associated bodies from the rules, and created a workaround for other religious objectors by creating the "accommodation."

Little Sisters of the Poor is also critical of how the category system for the accommodation works. It claims that churches (which gain the automatic exemption) and faith-based organizations (which don't) are separated into their two distinct categories purely based on who pays tax. Churches and other houses of worship do not have to file tax returns with the IRS, whereas Catholic non-profits such as the Little Sisters do.


"The exemption does not just apply to churches, it applies to religious orders, and if my clients just stuck to their knitting and not help the elderly poor, they could qualify," Noel Francisco, one of the lawyers representing the petitioners, said Wednesday. "My clients would love to be a conscientious objector, but the government insists they be a conscientious collaborator. There is no such thing."

On the courthouse steps, some supporters of the accommodation system were cautiously confident that the decision, which is expected in June, will favor women's right to contraception.

"This accommodation for the organizations that have sued the government is enough," Barry Lynn, executive director of Americans United for Separation of Church and State, told VICE News. "I think this will likely be a victory for women's health. Real religious freedom means you have a moral right to make your own judgment about some of the most intimate healthcare decisions of your life."

Follow Liz Fields on Twitter: @lianzifields

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