Little Sisters argue contraception case at Supreme Court

Nuns lobby against the Affordable Care Act's birth control mandate outside the Supreme Court ahead of oral arguments in Zubik v. Burwell on March 23, 2016.

WASHINGTON — A case involving a Maryland-based order of nuns appeared to divide the Supreme Court on Wednesday as attorneys argued that the Obama administration had overstepped its authority by requiring faith-based employers to facilitate health insurance coverage for contraception.

The Little Sisters of the Poor, a global Roman Catholic order with its U.S. headquarters in Catonsville, joined with other religious groups in the case, which questions whether the Obama administration has done enough to exempt those groups from the coverage requirements of the 6-year-old Affordable Care Act.


At issue are the regulations the administration devised to make sure that religious groups do not have to pay for or arrange the provision of contraceptives to which they object, while ensuring that women covered under their health plans still can obtain birth control.

"Basically, it all boils down to the fact that we just want to continue serving, as we have for 175 years, according to our religious beliefs," said Sister Maria Grace, a Baltimore resident and member of the order who was part of a large demonstration outside the court Wednesday. "That's all we're asking."


Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. and Anthony M. Kennedy expressed sympathy for the groups' argument that they remain complicit in providing morally objectionable contraceptives under the government's plan.

"Hijacking: It seems to me that's an accurate description of what the government wants to do," Roberts said.

Kennedy also used that word during 90 minutes of crisp arguments and frequent interruptions by the justices.

"The Little Sisters of the Poor ... face a dilemma," argued Paul D. Clement, an attorney representing the groups. "They can adhere to their religious beliefs and pay millions of dollars in penalties or they can take steps that they believe to be religiously and morally objectionable."

The four liberal justices seem likely to vote to uphold the accommodation offered to faith-based groups, but that could result in a 4-4 tie because the death in February of conservative Justice Antonin Scalia leaves the court ideologically divided on many issues. A split decision would uphold four appeals court rulings in favor of the administration but would not set a nationwide precedent.

Justice Sonia Sotomayor said the administration's arrangement takes into account women who are covered by the affected plans and "have a real need for contraception." Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan asked questions that signaled their support for the administration's position.

"As in all things, it can't be all my way," Ginsburg said. "There has to be an accommodation, and that's what the government tried to do."

Contraception is among a range of preventive services that must be provided at no extra charge under the 2010 health care law. Houses of worship and other religious institutions whose primary purpose is to spread faith are exempt from the birth-control requirement.


Other faith-affiliated groups that oppose some or all contraception have to tell the government in writing or their insurers that they object. Under the accommodation set by the administration, those insurers may then seek reimbursement from the government for the cost of covering contraception.

The Little Sisters of the Poor run homes for the elderly and the poor in 31 countries, serving more than 13,000 people. The organization employs about 50 lay workers. The group won a temporary reprieve from the coverage requirement from the Supreme Court in early 2014.

In 2014, the justices divided 5-4, with Scalia in the majority, to allow some "closely held" businesses with religious objections to refuse to pay for contraceptives for women. That case involved the Hobby Lobby chain of craft stores and other companies that said their rights were being violated under the 1993 Religious Freedom Restoration Act.

The nonprofit groups are invoking the same law in asking that the government find a way that does not involve them or their insurers if it wishes to provide birth control to women covered by their health plans.

The court will consider whether the accommodation offered by the Obama administration violates the groups' rights under the religious freedom law. Even if it does, the administration still could show that it has a "compelling interest" in the provision of contraception and that its plan is the most reasonable way, or "least restrictive means" of getting birth control to women covered by the groups' health plans.

The Associated Press contributed to this article.