More Nuns Seek Supreme Court Protection

By DEACON MIKE MANNO

Several orders of nuns, both Catholic and Anglican, as well as a couple of Catholic dioceses, along with several other Christian churches and faith-based social justice ministries, are asking the Supreme Court to protect them from an insidious state rule in New York that will compel them to provide abortion coverage in their employees’ health-care packages.
Shades of the Little Sisters of the Poor, who successfully challenged Obama-era regulations that forced them to provide contraceptive coverage in their health insurance. Three times the court ruled in favor of the Little Sisters holding that the government could not force the Little Sisters to do so.
Ironically, in 2017 after the Little Sisters scored two of their Supreme Court victories, the superintendent of the New York department of financial services, Linda A. Lacewell, promulgated a regulation mandating that employer health-care plans cover abortions. The regulations, as originally proposed, contained a religious exemption. But after public pressure, Lacewell backtracked on the religious protection, limiting the exception only to religious employers whose work is, basically, with only members of their sect and who employ persons who share the religious beliefs of the employer.
Thus numerous religious organizations such as the Carmelite Sisters, who run a nursing home for the elderly and dying, and the First Bible Baptist Church, which serves the community through youth and deaf ministries (just to name two of the plaintiffs), who do not limit their ministry to just members of their own body, nor do they restrict hiring to members of their faith, do not qualify for the rule’s religious exemption.
According to the petition filed with the Supreme Court:
“The Superintendent abandoned the broader exemption after ‘request[s]’ by ‘hundreds of commenters.’ In the Superintendent’s view, ‘[n]either State nor Federal law require[d]’ any exemption. And the exemption she chose was analogous to existing state law.’ The Superintendent stated that she rejected the initially proposed religious exemption because ‘the interests of ensuring access to reproductive care, fostering equality between the sexes, providing women with better health care, and the disproportionate impact of a lack of access to reproductive health services on women in low income families weighs far more heavily than the interest of business corporations to assert religious beliefs’.”
In other words, the abortion lobby got to her. As a result she narrowed the exemption to protect only religious entities whose purpose is to inculcate religious values who primarily serve and hire co-religionists. The regulation imposes fines for employers who fail to provide abortion coverage: $2,700 per employee. In the case of the Carmelite Sisters, with over 200 employees of their nursing homes, those fines would reach over half million dollars a year.
So after losing their case in the New York courts, the Becket Fund for Religious Liberty, and several private law firms, are appealing the matter to the Supreme Court on behalf of the religious plaintiffs.
“Our faith tells us that every life is precious from the moment of conception to the final breath. That’s why we spend our lives praying and serving to lift others’ burdens,” said Mother Miriam of the Sisterhood of Saint Mary, the oldest religious order founded in America in the Anglican tradition.
“New York has told us that if we want to hold our beliefs about the sanctity of life, we have to stop serving non-Anglicans. We cannot compromise on our religious beliefs, or in our service to people of all faiths or no faith at all. That’s why we need relief from the Supreme Court.”
In their petition asking the court to hear the case (Writ of Certiorari), the religious groups, which include the Catholic Dioceses of Albany and Ogdensburg, and Catholic Charities of Brooklyn, write:
“Needless to say, this regulation imposes enormous burdens on the countless religious entities opposed to abortion as a matter of longstanding and deep-seated religious conviction.”
The petition claims that the rulings against them in the lower courts stem from an improper finding in an earlier case which held that applying a neutral law of “general applicability” to a case does not require the reviewing court to subject the matter to “strict scrutiny,” which imposes upon the government the burden to show a compelling governmental interest using the least restrictive means possible, lest the law be found in violation of the challenging party’s First Amendment protections.
After a short history of how other courts and circuits have interpreted prior cases, the petition makes the claim that since there was a modified exception for certain religious institutions, the law is not, therefore, one of general applicability. Quoting recent case law, plaintiffs argue “that a regulation is not generally applicable if it has ‘any’ exception.”
Further, “That the abortion mandate undermines New York’s interest in ensuring comprehensive coverage by exempting some religious organizations but not others should thus be more than sufficient to trigger strict scrutiny.”
Additionally, petitioners argued, “Exempting only certain religious organizations while imposing burdens on other necessarily triggers strict scrutiny. No state can pass laws that prefer one religion over another. Imposing burdens on some religious entities while exempting others flouts the constitutional prohibition of denominational preferences.”
And they argued, “[T]hat the Abortion Mandate violates the Free Exercise Clause because it substantially burdens and discriminates among and against certain religious entities without justification. The Abortion Mandate was promulgated with the explicit intention of exempting some employers, while, at the same time, excluding other employers from the exemption. And the exemption ‘treats similarly situated individuals and organizations differently based solely on religious viewpoint’.”
“When New York instituted its abortion mandate, the Little Sisters of the Poor were already two Supreme Court victories into their battle against the contraceptive mandate. Now they’ve won for a third time, sending the clear message that the government can’t make nuns do its dirty work,” said Lori Windham, senior counsel at Becket.
“New York’s failure to learn from the Little Sisters’ saga that you can’t make nuns pay for abortions is beyond reason. The court needs to step in and teach New York that lesson.”
As I always caution in these cases, the Supreme Court has not agreed to hear this case yet, so the only petition filed at this point is an argument as to why the court should accept it. If it is accepted, the argument will turn on how the court should rule, and that could take a year or more before the case is finally submitted. So stay calm and pray the court accepts the case and grants the relief requested.
(You can contact Mike at: DeaconMike@q.com and listen to him every Thursday at 10 a.m. CT on Faith On Trial at IowaCatholicRadio.com.)