During his time in Washington, D.C., Pope Francis visited the Little Sisters of the Poor, an “international congregation of Roman Catholic women.” The group is currently involved in a lawsuit with the Obama administration over the group’s refusal to pay for employee contraception. The group asserts that, under the Religious Freedom Restoration Act, it is exempt from the requirement of the Affordable Care Act that it either pay for contraception or guarantee payment by a third party.
The Little Sisters of the Poor filed their lawsuit in 2013. This July, the 10th Circuit Court of Appeal ruled that the group must pay for contraception. In August, the appeals court granted a stay so that the nuns could petition for certiorari to the Supreme Court. The appellate court has held that the nuns would not be violating the tenets of their faith by following the contraceptive provisions of the ACA. The nuns argue that the appellate court has no business interpreting their religious beliefs for them. Attorney Adèle Keim with the Becket Fund for Religious Liberty represents the Little Sisters of the Poor and discusses the case in this report.
Keim says that the compromise offered by the Obama administration—that a religious group need not pay for contraception if it guarantees payment by a third party—is “a compromise in name only.” The government, she says, wants the Little Sisters of the Poor to authorize a takeover of their healthcare plan by insurers. The plan in question is provided by the Catholic insurer Christian Brothers Services, and it also cannot comply with the ACA contraception mandate. Keim likens the dilemma to a request by a friend to be driven to a bank to rob it. Refusing to drive the friend but instead handing over the keys does not resolve the moral issue.
The case has not yet been take up by the Supreme Court or ignored by the Court. Keim points out that the case went up to the Supreme Court on an emergency basis and not on direct review. However, now that the lawsuit has worked its way through trial and appeal, it is ripe for consideration on the merits by the Supreme Court. Should the Supreme Court choose to hear the case, Keim believes the Little Sisters have a strong chance of prevailing.
Keim says that the rulings against the nuns have been without merit. One ground for ruling against the nuns has been that their accepting the compromise would not conflict with their religious beliefs. That, says Keim, has been proved to be false based on the government’s own statements. The other problem Keim sees is the notion that federal judges should get to decide whether forcing the nuns to comply would conflict with their religious beliefs. Judges “should not be opining” on the religious beliefs of the Little Sisters. Keim points out that the opinion of the appellate court spends many pages discussing the religious beliefs of the nuns, something the court should not do.
Adèle Keim is an attorney with the Becket Fund for Religious Liberty. She joined the Becket Fund as legal counsel in 2012 after spending four years as an associate in the appellate practice at Winston & Strawn in Washington, D.C. From 2007 to 2008, she clerked for Hon. Edith Brown Clement on the U.S. Court of Appeals for the Fifth Circuit in New Orleans. Before becoming a lawyer, she worked for a Canadian Member of Parliament and spent two years covering international religious freedom and social issues for the Evangelical Fellowship of Canada. The Legal Broadcast Network is a featured network of Sequence Media Group.