On July 7, the U.S. 3rd Circuit Court of Appeals heard oral arguments in Commonwealth of Pennsylvania and New Jersey v. President of the United States, (audio of full oral arguments). In the case, a Pennsylvania federal district court invalidated two rules promulgated under the Affordable Care Act that allow employers with religious objections and most employers with moral objections to opt out of directly furnishing contraceptive coverage for their employees in their health insurance plans. Little Sisters of the Poor intervened as a defendant in the case. The trial court held that government's action in promulgating the rules was arbitrary and capricious in violation of the Administrative Procedure Act. (See prior posting.)
EWTN reported on arguments in the Court of Appeals, saying in part:
Under the rule, employers who have moral or religious objections can opt in to an accommodation in which the federal government subsidizes contraception coverage in their plans. Employers who also have moral or religious objections to the accommodation can sidestep contraception coverage altogether.
[Aimee Thomson, arguing the case for Pennsylvania and New Jersey] told the panel of judges that the exemption exceeds the scope that is required under the Religious Freedom Restoration Act (RFRA). She said the regulators failed to show that these exemptions were necessary to solve the religious liberty issue and expressed concerns over employers potentially getting exemptions even though their objections are not sincere....
Mark Rienzi, president of Becket and lead attorney for the Little Sisters, argued that the federal government sought to “choose a middle ground” that created a mandate but protected religious freedom, based on Supreme Court guidance: “Nothing about that is even close to arbitrary and capricious.”
