The hearing of U.S. Supreme Court case Zubik v. Burwell made Greg Wolfe’s Holy Week memorable.
Wolfe, diocesan finance director, is chairman of Christian Brothers Employee Benefit Trust board and found himself at the Supreme Court building March 23 to hear a case he has been closely watching for the past two years.
Christian Brothers is the insurance provider for dozens of dioceses and Catholic organizations, including the Diocese of Little Rock and the Little Sisters of the Poor. When the Little Sisters and 36 other groups received approval for their cases against the Affordable Care Act’s mandate to be heard by the Supreme Court, the suits were consolidated as Zubik v. Burwell, better known as the Little Sisters of the Poor case. The case is named for Pittsburgh Bishop David A. Zubik, another plaintiff, and Sylvia Mathews Burwell, the current secretary of the Department of Health and Human Services.
Under the Affordable Care Act of 2010, most religious and other employers are required to cover contraceptives, sterilization and abortifacients through employer-provided health insurance. Refusal to comply subjects nonexempt employers to heavy fines.
A very narrow exemption for churches and religious orders was permitted from the start, but several Catholic and other religious institutions and ministries that were not exempted — such as colleges, hospitals and charitable providers — said they could not participate in providing contraceptives without violating their beliefs.
The Obama administration then created its accommodation, or “work-around,” that allows objecting employers to acknowledge their opposition to the contraceptive coverage by notifying HHS in a letter. This triggers an arrangement for a third party to provide the coverage. These employers still found the “opt-out” provision objectionable.
Five years later, several circuit courts of appeal ruled that religious entities, such as the Denver-based Little Sisters of the Poor, were not substantially burdened by the opt-out procedures. Only one such court, the 8th U.S. Circuit Court of Appeals, in a September ruling, accepted the nonprofits’ argument that complying with the opt-out provision violates their religious beliefs.
Wolfe said he has learned about lots of various religions that are supporting the plaintiffs because they want to stand up for religious liberty.
“This is a case about religious freedom in our country and what limits the government can place on our exercise of religion and our consciences,” he said. “It is not about contraception or abortion really. That is just today’s issue.”
As the oral arguments got underway, outside the Supreme Court in Washington, D.C., hundreds of religious women and laypeople sang and prayed.
Inside, Wolfe was among 300 people allowed into the courtroom to hear the 90 minutes of oral arguments, which he called “fascinating.”
Wolfe said the case was an opportunity for him to also connect with about 20 Little Sisters of the Poor who were inside the courtroom and outside praying. He had met many of them previously through the late Bishop Andrew J. McDonald who was a chaplain for the Little Sisters nursing home in Palatine, Ill.
“Never would the Little Sisters of the Poor seek or want such attention. They simply want to respond to their primary call — to serve the Lord in the elderly,” he said.
Wolfe said the arguments focused on the Religious Freedom Restoration Act of 1993 and the government’s accommodation to those who believe the mandate would cause a “substantial burden.”
“If it did not cause a substantial burden, then the case was over and the government would win. But if it did, the next question was: Does the government have a ‘compelling interest’ so great that it would justify the government imposing its will, despite the substantial burden?” he said.
Wolfe said lawyers acknowledged that many religious organizations are already exempt from the mandate.
“Additionally, there are numerous other insurance plans that have an exemption for various reasons,” Wolfe said. “This inconsistency was pointed to by our attorneys as proof that the government had no ‘compelling interest,’ otherwise, why all the exceptions? Our lawyers over and over simply asked that religious employers — like Notre Dame University, the Little Sisters of the Poor, East Texas Baptist College — all be given the same exemption that churches had been given by the Department of Health and Human Services.”
After the court session, Wolfe attended a luncheon organized by the Becket Fund for Religious Liberty, which represents the Little Sisters. They then attended a Mass at St. Peter Church on Capitol Hill where Wolfe read the petitions. The celebrant, Archbishop William E. Lori of Baltimore, is chairman of the U.S. Conference of Catholic Bishops’ Ad Hoc Committee for Religious Liberty, and was in the courtroom for the oral arguments. “For all of us, especially those of us who are not lawyers, it’s a glimpse into the complexities of the law,” he said.
Reflecting on Holy Week, he added, “And so we do find rest in Jesus, even as controversies swirl around us. It’s never been easy to follow Jesus, and perhaps it never should be.”
Catholic News Service contributed to this article.
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