‘Little Sisters of the Poor’ Case Divides Supreme Court Along Usual Lines

The Supreme Court appeared divided along the usual conservative-liberal ideological lines during oral arguments Wednesday in the case of Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania.

The Little Sisters of the Poor, an order of Catholic nuns that performs charitable work, objected to being required to provide contraceptives as part of insurance coverage mandated by the Obamacare law. The law exempted churches and other religious institutions focused on worship, but not religious organizations.

As Breitbart News recalled Tuesday, the Little Sisters of the Poor have been in court for seven years defending their religious objection to providing contraceptives. Under the Obama administration, they were fighting the federal government. In the separate, but related, Hobby Lobby case, the Court held in 2014 that the federal government had to allow Christian business owners to opt out of insurance coverage for contraceptives that could cause abortion.

After President Donald Trump created a new rule in 2017 exempting religious organizations from the contraceptive mandate, the Little Sisters of the Poor were forced to defend themselves from liberal states. The case currently before the Court resulted from district court decisions in Pennsylvania and California.

The oral arguments Wednesday were broadcast live on C-SPAN, an unusual step taken because of the need for social distancing due to the coronavirus pandemic.

The justices appeared to line up along typical lines, with conservative justices posing questions to Solicitor General Noel Francisco and Little Sisters’ attorney Paul Clement that helped them develop their case, and liberal justices asking questions or raising points that supported the liberal states’ argument against the rule. Likewise, the justices tended to confide their toughest questions to arguments brought by the opposite “side.”

One exception was Justice Stephen Breyer, who seemed impatient as he asked Pennsylvania Chief Deputy Attorney General Michael Fischer why his side had not challenged the rule under the Administrative Procedure Act (APA)’s prohibition of rules that are “arbitrary, capricious, [or] an abuse of discretion.”

Justice Elena Kagan, who once taught administrative law at Harvard Law School, quizzed Fischer about his arguments about the procedural invalidity of the rule, suggesting she might have seen a weakness there.

Justices Sonia Sotomayor and Ruth Bader Ginsburg objected to the burden of finding contraceptives being shifted from the insurance company to the women themselves. Francisco noted that contraceptives were widely available and that the burden was small.

Justice Sotomayor asked Clement whether the rule would exempt employers from providing coverage for a COVID-19 vaccine, based on a good-faith religious objection to vaccination.

He replied that under that hypothetical circumstance, involving a potentially deadly disease, the government could probably compel employers to cover vaccination, because the requirement would satisfy the “strict scrutiny” test necessary for overriding a fundamental right.

Justice Ginsburg participated despite being hospitalized for an infection caused by a gallstone.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His new book, RED NOVEMBER, is available for pre-order. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.