Tag: U.S. Supreme Court

“Game-changer”: Supreme Court helps the Little Sisters, though mandate stands

~ Ellen Kolb ~ Leave a comment

For now, the Little Sisters of the Poor and the numerous other faith-based agencies fighting the HHS contraceptive mandate will NOT be subject to federal penalties for refusing to be a party (via employer-provided health insurance) to provision of goods and services that violate their faith. A unanimous U.S. Supreme Court decision today made that clear, while sending thirteen challenges to the mandate back to lower courts.

“This is a game-changer,” said Mark Rienzi of the Becket Fund, representing the Little Sisters. “The Court has accepted the government’s concession that it can get drugs to people without using the Little Sisters. The Court has eliminated all of the bad decisions from the lower courts. And the Court has forbidden the government from fining the Little Sisters even though they are refusing to bow to the government’s will. It is only a matter of time before the lower courts make this victory permanent.”

I admire Mr. Rienzi’s optimism. I hope he’s right.

The eight Justices declined to rule on the legality of the mandate, which is a regulation that followed the federal Obamacare fiat that contraception for women is a basic “preventive” health service. This federal policy that women are basically broken and in need of fixing is left untouched by today’s Court action.

The federal government can go ahead and provide the coverage for contraceptives and abortion-inducing drugs and devices, under today’s Court action.

The bad news is that this means no majority could be mustered in the Court to reject the mandate altogether. That was the “decision” of the day: the mandate is still legal, despite numerous carve-outs and exemptions. From SCOTUSblog:

“The two issues that the Court had agreed to rule on, and then left hanging at least for now, were whether the [Affordable Care Act] mandate violates the federal Religious Freedom Restoration Act by requiring religious non-profits that object to contraceptives to notify the government of that position, and whether the move by the government to go ahead and arrange access to those benefits for those non-profits’ employees and students was the ‘least restrictive means’ to carry out the mandate.”

“A decision not to make a decision is still a decision.” Those words were drummed into my head by my public-policy professor more than three decades ago as I studied landmark Supreme Court cases. An important non-decision was made today: the mandate stands. So do at least thirteen challenges to it, though, and that’s good news.

Supreme Court, minus Scalia, takes on religious liberty

~ Ellen Kolb ~ Leave a comment

If I could see the Supreme Court Justices today for one minute, all I’d say to them is this: leave the nuns alone, already. The president’s not listening. Maybe the court will.

The fuss over Obamacare’s contraceptive mandate may have been off the front pages for awhile, but the Little Sisters of the Poor are raising the mandate’s visibility again. Good for them. They and several other petitioners are at the U.S. Supreme Court today, politely asking the Justices to prevent the federal government from forcing the petitioners to act in violation of their faith.

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The contraceptive mandate (also known as the HHS mandate, in a backhanded tribute to the federal agency that promoted it) is based on Obamacare’s definition of contraception as a “preventive” service for women. (Not for men, mind you.) The idea was for insurance plans, including employer-provided plans, to cover contraception without a co-pay. Employers offering health insurance as a benefit would thus have to subsidize contraceptive use by employees.

The Little Sisters, women one and all, are having none of it. So far, litigation has spared them the punishment the government promises to mete out to balky employers. Today, the litigation begins its final stage.

Contraceptives include abortion-inducing drugs and devices. You’ll recall that the Hobby Lobby decision, decided on extremely narrow grounds, rested on the company’s willingness to pay for most kinds of contraception but not the ones that actually induce abortion.

Where does that leave Catholic entities like the Little Sisters, when providing contraception goes against their religious beliefs? Making contraception available under their health insurance for employees, even indirectly, makes the Sisters complicit in activities their religion sees as immoral. When the federal Obamacare exchanges exist, allowing people to buy insurance independent of their employers, why should employers be threatened with ruinous fines for not bowing to the mandate?

This isn’t solely a Catholic thing. Other petitioners today include Baptist and Nazarene institutions. What unites the petitioners is a firm belief that the government has no business telling them what their respective religions allow. Read more about the challenges to the mandate on the web site of the Becket Fund for Religious Liberty.

The feds have come up with one supposed “accommodation” after another in an attempt to make religious objections to the mandate go away.  The feds have failed.

One fact is particularly damaging to the government’s dogged insistence that “free” contraceptives for women are a basic right: companies and agencies employing a total of one-third of Americans are already exempt from compliance with the mandate. The federal government has let the military, the city of New York, and Exxon off the hook, to name just a few. For some reason, though, the Little Sisters of the Poor have to go to court to vindicate their rights.

The Sisters’ ministry is to the elderly poor. Fines for noncompliance with Obamacare will harm not only the Sisters themselves but the people they serve. “So cover the contraceptives,” say mandate supporters, sounding a bit thuggish. Nice clients you have there. It’d be a shame if anything happened to them.

The Supreme Court split 5-4 in favor of Hobby Lobby, with an extraordinarily bitter dissent from Justice Ginsburg. One of the five in the majority, Antonin Scalia, has since died and has not been replaced. A 4-4 split would leave lower court decisions intact, which would be bad for today’s petitioners.

The lawyers for the petitioners can do math. They know the odds. They also know the First Amendment is alive and well, including protection for freedom of religion. As with the rest of the Bill of Rights, the First Amendment was not put in place to protect selected majorities but to protect all Americans.

You go, girls.

Gosnell grand jury: “license abortion clinics as ambulatory surgical facilities”

~ Ellen Kolb ~ Leave a comment

As the Supreme Court hears a case involving a Texas law mandating that abortion facilities be given the same regulatory treatment as ambulatory care facilities, the Gosnell grand jury report from 2011 reminds us what happens when pro-abortion ideology trumps women’s health. I hope the Justices find this report somewhere amid the many briefs that have been filed in the Texas case.

quote from Gosnell grand jury

Gosnell was in Pennsylvania, but the recommendations of the grand jury are of interest to anyone who cares about public health in any state. From page 248 of the grand jury report, under “Recommendations”: “The Pennsylvania Department of Health should license abortion clinics as ambulatory surgical facilities.”

“The regulation of Pennsylvania’s ambulatory surgical facilities – which run over 30 pages – provide a comprehensive set of rules and procedures to assure overall quality of care at such facilities. The effect of the Department of Health’s reluctance to treat abortion clinics as ASFs was to accord patients of those facilities far less protection than patients seeking, for example, liposuction or a colonoscopy….Gosnell’s facility fell far below the basic, minimum standards of care that any patient having a surgical procedure should expect to receive. There is no justification for denying abortion patients the protections available to every other patient of an ambulatory surgical facility, and no reason to exempt abortion clinics from meeting these standards.”

Does the Texas law at issue today create stronger regulations on abortion providers than on, say, liposuction providers? Based on their questions today, some Justices apparently think so, and they don’t like it. I wonder how many of them would object if they believed the law simply required parity with ASFs.

Today at the Supreme Court of the United States, our nation’s solicitor general argued against the Texas law, calling it an “undue burden.”

The Pennsylvania Family Institute and Council anticipated that argument. Their words: “Ask the women who went to Kermit Gosnell if lower standards for abortion clinics is a good thing.”

From Pennsylvania Family Institute.
From Pennsylvania Family Institute.

 

Supreme Court to hear Texas abortion arguments

~ Ellen Kolb ~ Leave a comment
Supreme Court
From http://www.supremecourt.gov

A few thoughts on the eve of U.S. Supreme Court arguments about a Texas abortion law:

  • What’s at issue is a piece of the Texas abortion regulation that was passed only after a huge uproar in Austin. Wendy Davis and her pink-sneakered filibuster couldn’t prevent passage of the legislation almost three years ago. It took some fast action to get the case to the Supreme Court in less than three years. The Massachusetts buffer zone case took much longer than that.
  • I’m indebted to Steve McDonald of GraniteGrok for pointing me to a post from The Federalist that makes a point not yet stressed in most coverage of the case, Whole Woman’s Health v. Hellerstedt: there are parts of the Texas law that aren’t even being challenged. “Almost three years ago the Texas legislature enacted HB2, the principle [sic]components of which are (1) restricting abortions after 20 weeks, when we know the unborn child can feel pain; (2) requiring abortionists to comply with the Food and Drug Administration’s approved protocol on chemical abortions; and (3) ensuring that abortionists would have to comply with basic health and safety standards….[the] prohibition on abortions after 20 weeks remains unchallenged.…The Court will not consider that part of the law because the abortion industry, despite its claims about harm to women and Wendy Davis’s rhetoric, has chosen not to challenge it.” [emphasis added]
  • The omnibus Texas law was a direct response to the Gosnell case in Pennsylvania – in effect, a Gosnell prevention act. It’ll be interesting to see if that comes up in tomorrow’s oral arguments.
  • With the recent death of Justice Scalia, observers with more time than I for Court-watching have suggested that a 4-4 split is likely in this abortion-law case, which would leave lower-court decisions intact. Any decision in the case is weeks or months away.

I’ll be looking to scotusblog.com for updates on this week’s arguments.

Freedom of (some) information: SCOTUS rejects hearing on NHRTL case

~ Ellen Kolb ~ Leave a comment

The Supreme Court of the United States giveth, and the Supreme Court taketh away, and sometimes the Supreme Court says “go away.” An important New Hampshire case got the go-away treatment on November 16, as the Court declined to hear New Hampshire Right to Life v. Department of Health and Human Services. 

As my constitutional law professor stressed to me years ago, “A decision not to make a decision is still a decision.” This one went the wrong way.

NHRTL president Jane Cormier said, ““We would have been thrilled if the U.S. Supreme Court had taken on our case. NHRTL has been very concerned with the lack of transparency within the Obama administration. Despite the fact the NH Executive Council voted down the funding of PPPNE in 2011, US Health and Human Services chose to fund Planned Parenthood without going through proper state approval or even follow federal regulations requiring competitive bidding.”

This was effectively a victory for Planned Parenthood of Northern New England, which since 2011 has fought efforts by New Hampshire residents to find out how a federal grant to PPNNE seemed to appear out of nowhere after the New Hampshire Executive Council in June 2011 denied a PP contract proposal. NHRTL sought documents under the federal Freedom of Information Act (FOIA) to find out how the federal grant was made. PP produced some of the requested documents, with parts redacted. It refused to produce others – in particular, its Manual of Medical Standards and Guidelines. FOIA grants exemptions for “trade secrets” and material that could harm a party in a future competitive bidding process, and PP successfully claimed that the Manual falls under that exemption.

By the way, NHRTL’s FOIA request for the Manual was not out of line. PP had to produce its Manual to the government in order to get the federal grant – a point made by two Justices who dissented from yesterday’s announcement.

It would have taken four out the nine Supreme Court justices to accept the case. Normally, denials are made without comment. In this case, though, Justice Clarence Thomas took the trouble to publish his reasons for wanting to grant a hearing, and he was joined by Justice Antonin Scalia. They are troubled by conflicting lower-court rulings in FOIA cases about documents that are exempt from release. “The First Circuit’s decision warrants review. It perpetuates an unsupported interpretation of an important federal statute and further muddies an already amorphous test. For these reasons, I respectfully dissent from the denial of certiorari.” (See the PDF of Justice Thomas’s remarks at page ten of this link at supremecourt.gov.)

Neither Thomas nor Scalia took the side of one party over the other. They simply pointed out that lower courts in FOIA cases around the country have made conflicting rulings about what can be exempted from FOIA requests. That’s the sort of situation that normally makes a case ripe for Supreme Court review. I wonder if the Court would have taken the NHRTL case if the names of the parties had been different.

Alliance Defending Freedom, which with local attorney Michael Tierney represented NHRTL in court, released a statement after this week’s Court action. “HHS says it can’t release the documents because doing so might affect Planned Parenthood’s ‘competitive position’ if it faces a commercial grant competitor in the future. HHS also refused to produce information about its own debates over how to sell the controversial decision to the public.”

A related but separate petition arising from the 2011 Executive Council decision is pending before the New Hampshire Supreme Court, New Hampshire Right to Life and Jackie Pelletier v. New Hampshire Director of Charitable Trusts Office (docket #2015-0366).

“New Hampshire’s Executive Council recently voted to again eliminate state funding for Planned Parenthood,” noted Cormier. “We will need to be vigilant to ensure this type of back-door unaccountable funding does not occur again.”

Meanwhile, as it did in 2011, PP blames the Executive Council for attacking women’s health care by denying PP a contract a few months ago. It’ll be interesting to see PP’s 2015 financial statements, which should reveal how much or how little PP is shifting its priorities away from public policy ($1.5 million in 2014, plus a lobbyist’s salary) and towards clinical care.