Nuns seek to stop CNN reporter-turned-judge from forcing them to pay for contraception - again

"What has been is what will be, and what has been done will be done again; there is nothing new under the sun," according to the Book of Ecclesiastes.

A Catholic order of nuns that serves elderly indigents is hoping to break that cycle when it comes to a CNN reporter-turned-judge who keeps stripping its religious exemption to the Affordable Care Act's contraceptive mandate, after repeated trips to the Supreme Court.

Religious liberty law firm Becket filed its opening brief on behalf of Little Sisters of the Poor with the 3rd U.S. Circuit Court of Appeals to overturn the summer ruling by U.S. District Judge Wendy Beetlestone, nominated by Obamacare's namesake. 

Paul Clement, who has argued 100-plus cases before SCOTUS, is the star lawyer on the brief.

“The fourteen-year legal crusade" against the order, with Pennsylvania and New Jersey taking the baton from the Obama administration after its successor finalized a religious exemption, "has been needless, grotesque, and un-American,” said Becket President Mark Rienzi. Mother Loraine Marie Maguire prays that the states "end this needless harassment."

Becket scored a win against a different state Monday, with the Wisconsin Supreme Court rejecting the Badger State's request to eliminate the "religious purposes exemption" in Wisconsin's unemployment compensation system rather than give it to Catholic Charities, as SCOTUS ordered in a unanimous religious freedom precedent in June.

“You’d think Wisconsin would take a 9-0 Supreme Court loss as a hint to stop digging,” Becket Vice President Eric Rassbach said. “But apparently Attorney General [Josh] Kaul and his staff are gluttons for punishment."

Pennsylvania and New Jersey "lack injury, and their claims are not redressable in any lawful way," so the Philadelphia-based appeals court should vacate and remand for dismissal, the Little Sisters brief concludes after picking apart Judge Beetlestone's late-breaking discovery that the first Trump administration's exemption was "arbitrary and capricious."

After SCOTUS reversed Beetlestone in 2020, the former journalist – who serves concurrently as chancellor of the University of Liverpool – put the case on hold at the request of the Biden administration, which proposed but never finalized a regulation that theoretically would have removed religious employers from any complicity in contraceptive access.

Five years later, Beetlestone issued another nationwide injunction blocking the 2018 regulation, inverting the high court's finding that if federal agencies had not considered the Religious Freedom Restoration Act when writing the regulation, "they would certainly be susceptible to claims that the rules were arbitrary and capricious," as Justice Clarence Thomas wrote.

Her ruling amazed Ethics and Public Policy Center scholar Ed Whelan, who clerked for the late Justice Antonin Scalia. 

Beetlestone not only retroactively tied the Obama administration's hands by claiming the executive branch has no authority to write religious exemptions for Obamacare, but "adopted the astounding position that federal bureaucrats are not supposed to give any thought to what RFRA demands," Whelan wrote at the time.

She also selectively invoked the "procedural defects" in the Trump administration's interim rules while ignoring that the Obama administration "used the same process, with the same supposed defects, to create the underlying contraceptive mandate in the first place," he said.

Never identified 'a single woman who would be harmed,' just projections of harm

Becket's brief, filed Friday, lays out an easy path for the 3rd Circuit to dismiss the states' challenge without reaching the merits, one that courts including SCOTUS are fond of adopting: lack of particularized harm or any way for courts to legally redress the injury.

Neither Pennsylvania and New Jersey, nor Judge Beetlestone, have ever identified "a single woman who would be harmed" by the 2018 regulation, by losing contraceptive access and seeking help from the states, despite it being "in effect for the better part of a decade," the brief says. (A different court's permanent injunction protects the nuns for now.)

The judge relied on the 3rd Circuit's "now-vacated opinion from the preliminary-injunction stage" that let the states establish legal standing through "projections from 2018 about how many women nationwide might lose coverage," such that states' coffers would take a hit from covering them, and inexplicably exempted them from showing any "particularized harm."

The nuns asked the appeals court to "end this madness" in which the federal government faces a Catch-22 whenever it tries to "follow the best of our traditions and accommodate religion," facing litigation when a religious objector thinks it hasn't gone far enough and a state thinks it has gone too far.  

Without the regulation, the contraception mandate violates the free exercise clause because it "categorically exempts comparable secular activity" while giving the Health Resources and Services Administration "virtually unbridled discretion” to create exemptions, and "thus triggers strict scrutiny," the most demanding judicial review standard, "multiple times over."

The ACA itself exempts "grandfathered health plans providing contraceptives," and HRSA has created other secular exemptions and for "comparable religious activity in church-owned plans," without explaining how its interest in "facilitating contraceptive access" is inapplicable to the exemptions, the brief says.

Citing the unanimous SCOTUS ruling against Wisconsin in the Catholic Charities tax fight, the brief says the contraceptive mandate makes distinctions between religious groups based on "theological lines" and thus constitutes a "paradigmatic form of denominational discrimination." Both involve governments requiring "exclusively religious" activities for exemptions.

The mandate also violates the nondelegation doctrine because Obamacare does not limit or inform "how the HRSA is to exercise its plenary delegated authority to decide what services are covered under the ACA," the nuns' lawyers said.

"Even if Congress did mean to decide national policy on a hotly contested issue by hiding a contraceptive mandate in one clause about preventive services, it gave its delegee no bounds to stay within," the brief says. "Worse yet, whatever choices HRSA made would bind covered employers nationwide," a strong indicator of unconstitutional delegation.

Beetlestone wrongly neglected these questions on the grounds that the Little Sisters are intervenors in the states' challenge to the Trump administration, despite the fact that "these arguments go to redressability and [legal] standing" and that "intervenors are permitted to raise independent and non-overlapping arguments compared to the original parties."

The judge contrived an excuse to lock out the nuns, a D.C. Circuit decision that was "limited to the context of petitions for review of agency proceedings" that nonetheless gave judges discretion to consider arguments from intervenors that are "potentially determinative" of the case, as are the nuns' arguments, the brief says. 

Even if the regulation weren't required by RFRA – the nuns argue it is – "it is nonetheless permitted by RFRA," applying only to "religious groups with sincerely held religious objections to providing contraceptives," and the Trump administration has met the "low bar" for justifying the regulation under administrative procedure, the brief says.

The contraceptive mandate fails strict scrutiny, which requires "the least restrictive means" of accomplishing government goals, in myriad ways, according to the nuns.

Congress never imposed a mandate by statute, the original regulatory mandate has four explicit exemptions for both religious and secular activity, and Pennsylvania and New Jersey's own actions belie their arguments, the brief says: The Keystone State still lacks a comparable state mandate and the Garden State's religious exemption is even broader. 

"Indeed, the States’ entire case is premised on the availability of a range of state programs that do provide contraceptives," which contradicts any argument that forcing nuns to do it is the least restrictive means, the nuns told the appeals court.