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U.S. Supreme Court to hear Little Sisters of the Poor HHS mandate challenge

HHS sealThe U.S. Supreme Court today agreed to hear the Little Sisters of the Poor's challenge to the federal government's accommodation of a mandate requiring insurance coverage of morally-objectionable services.

The nation's high court is expected to hear oral arguments in March 2016.

As part of the Affordable Care Act, the federal Department of Health and Human Services (HHS) requires that all employers offer insurance coverage of abortion-inducing drugs, contraceptives and sterilization. The religious exemption to the mandate is extremely narrow, and essentially applies only to churches. Religiously-affiliated nonprofits — such as hospitals, social service agencies, colleges and universities — were granted an "accommodation" to the mandate, allowing the entities to sign a form notifying the federal government that they could not participate because of conscience objections. Their insurance company would then provide the benefit to employees.

The nonprofits — including the Little Sisters of the Poor — contend that signing the form makes them complicit in providing the objectionable products, and will lead to a slippery slope regarding religious freedom.

The Denver-based order of nuns that cares for the elderly in nursing homes sued the federal government over the HHS mandate, saying it violated their conscience. The mandate — set to go into effect for religious organizations on Jan. 1, 2014 — has been postponed for most religiously-affiliated nonprofits until after the Little Sisters of the Poor's case is resolved.

The case — formally known as Zubik v. Burwell — also involves HHS mandate challengers Bishop David Zubik, head of the Pittsburgh diocese; the Archdiocese of Washington; Priests for Life; East Texas Baptist University; Southern Nazarene University in Oklahoma; and Geneva College In Pennsylvania.

The challengers argue that the HHS mandate violates the federal Religious Freedom Restoration Act (RFRA), which states that "government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability." In order to win this issue, the government must prove that “application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

The for-profit company Hobby Lobby won its challenge against the HHS mandate in June 2014. However, the justices noted their ruling applied only to closely held corporations and could not be used to get out of other health insurance mandates or used as discrimination veiled as religious objections.

UPDATE: On Jan. 11, the general counsel for the U.S. Conference of Catholic Bishops (USCCB) filed an amicus — friend of the court — brief to the case. The brief argues that the government mandate that faith-based organizations facilitate payments for contraceptives and sterilization for their employees damages not only religious freedom, but society as a whole.

"If the petitioners abide by their religious beliefs, they face the loss of the ability to sponsor health coverage for their employees and millions of dollars in fines, threatening financial ruin. No one benefits from such an outcome—not the organizations, their donors, their clients, or their employees," wrote Anthony R. Picarello, Jeffrey Hunter Moon, Michael F. Moses and Hillary E. Byrnes of USCCB's Office of General Counsel.

To read the amicus brief filed by the USCCB, click here.