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Nuns Try to Intervene in Contraception Case

By William Vogeler, Esq. | Last updated on

As they entered the federal appeals court, the judges and the nuns had more in common than black robes.

The judges of the U.S. Third Circuit Court of Appeals were there to consider whether non-parties have a right to intervene in Pennsylvania v. Trump. The Little Sisters of the Poor Saints Peter and Paul Home were there for that same reason.

Ultimately, the appeals court will rule on President Trump's order that allows conscience-based objections to the contraception mandates of Obamacare. But first they have to decide whether the nuns can join in the conversation.

Oral Arguments

Showing deference to the religious sisters, Courthouse News reported, two of the justices suggested allowing them to participate in the lawsuit. Judge Stephanos Bibas wondered aloud whether it was fair to ask them to "rest on their laurels" pending the outcome of the case.

Judge Thomas Hardiman agreed, saying the Little Sisters could lose without a fight. "Then they lost the game and they were never allowed to participate," he said.

However, Judge Jane Roth said it might be better for the nuns to sit out until the underlying case is resolved. If the Trump administration prevails, she suggested, the nuns will have won.

But the state's attorney took out the ruler for a hard line against the nuns. Michael Fisher said they will be subject to fines if they do not follow the contraception commandment. "I'm not aware of any expiration date on Supreme Court decisions," Fischer said.

"Superfluous" Interests

The Little Sisters came to the Third Circuit after failing in the Tenth Circuit, where they also tried to intervene in a separate challenge. That matter is pending.

In the Pennsylvania case, a trial judge said their interests were "superfluous," given the Trump administration's position in the case.

"In this case, there is significant potential that Little Sisters' intervention will delay this litigation and prejudice the interest of the parties in securing an efficient resolution to an issue that, whichever way it is decided, has deep and widespread implications across the Commonwealth of Pennsylvania," Judge Wendy Beetlestone wrote.

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