Super lawyer Paul Clement, who has argued over 100 cases before the Supreme Court, today represented the Little Sisters of the Poor. (I assume for free.) According to Amy Howe he "argued that the process created by the Obama administration to allow them to opt out of the [contraceptive care coverage] mandate, which required them to notify the Department of Health and Human Services of their [religious] objection to the mandate, still placed a substantial burden on their exercise of their [Roman Catholic] religion [which considers artificial contraception to be sinful]."
Preparations for the 2015 Bishops Synod on the Family showed that Catholics widely ignore the ban, but the Little Sisters themselves have taken vows of chastity, celibacy, and obedience. So their complaint is that they must not be complicit in what they consider to be the sins of their nursing home employees. They're exempt from paying for contraception. Their grievance is that their religious practice is substantially burdened by the mandate to tell the government and their insurers that the Little Sisters as employers who provide health insurance that they are opting out of providing contraceptive coverage. So the states have to find a way to pay for it. What then is the Little Sisters gripe? That they have to notify the Department of Health and Human Services of their opt out!
That, they claim, substantially burdens their religious beliefs and practices, as conservative Catholic law professor Kevin Walsh argues in an amicus brief. The argument of course shifts the burden to the women who do not share that scruple and therefore will not get the benefit of contraceptive coverage which they would otherwise receive.
The word substantial does a lot of work - according to the nuns conscience prevents them even from saying No because it facilitates someone else's sin. For the objecting States substantial in the RFRA is an objective standard which is not met by the Sisters scruples. - gwc
Argument analysis: After marathon argument, little consensus on future of birth-control mandate exemptions - SCOTUSblog
by Amy Howe
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