State of California v. Azar
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On October 6, 2017, Health & Human Services issued a new rule with an updated, broad religious exemption that finally protected religious non-profits like the Little Sisters of the Poor, a group of Catholic nuns who care for the elderly poor. In its new rule, the government admitted that it broke the law by trying to force the Little Sisters and others to provide services like the week-after-pill in their health plans that violated their religious beliefs. That result should mean that the end is near for the Little Sisters’ lawsuit.
However, following the new mandate announcement, the state of California sued the federal government to take away the Little Sisters’ religious exemption. California admits that it has many of its own programs to provide contraceptives to women who want them. California never filed suit over the much larger secular exemptions created by the Obama Administration for big corporations—exemptions that applied to tens of millions more people than the religious exemption. California’s own mandate does not even apply to the Little Sisters of the Poor. And California has not identified a single actual person who had contraceptive coverage but will lose it because of this new rule.
Despite all this, California asked a judge to find that the Little Sisters should be forced to comply with the federal mandate (not a state mandate) or pay tens of millions of dollars of government fines.
On November 21, 2017, Becket intervened on behalf of the Little Sisters of the Poor in California and Pennsylvania. Becket has argued all along that the government has many ways to provide services to women who want them as well as protect the Little Sisters. Neither the federal government nor the state governments need nuns to help them give out contraceptives.
On December 12, the Little Sisters argued in an Oakland, California district court for their right to participate in the case and receive protection from government fines. On December 29, the court granted their motion to intervene in the case. In January 2018, the Little Sisters appealed to the Ninth Circuit to overturn a federal judge’s decision to invalidate the new HHS rule protecting the Sisters. On April 9, Becket filed its brief explaining why the states have no right to challenge this regulation, and why the new regulation is required by law and the 2016 Supreme Court order in Zubik v. Burwell.
As of June 11, 2018, briefing in the case is completed and the parties are awaiting oral argument at the 9th Circuit.