The oral argument in Little Sisters of the Poor v. Pennsylvania on Wednesday suggested that, after nearly a decade and three Supreme Court cases, the Justices are finally poised to rule in favor of the nuns.
The Little Sisters have been fighting for their religious liberty rights for seven years. The case began when the Obama Administration interpreted the Affordable Care Act to require employer insurance plans to cover every one of the FDA’s approved contraceptives.
Even though Congress exempted many small, and even large companies, like Exxon and Visa, from the contraceptive mandate, the Department of Health and Human Services (“HHS”) refused to grant an exemption to religious nonprofits, like the Little Sisters. The only accomodation offered required their complicity–mandating that the nuns authorize their insurance plans to cover birth control. As one of the Little Sisters, Constance Viet, explained, it isn’t a question of money for the nuns, but morals.
In 2017, the Trump Administration issued regulations which expanded the religious exemption to include not only churches but also religious nonprofits. It seemed like the Little Sisters would finally be able to get back to work caring for the elderly poor.
And then Pennsylvania and New Jersey sued. The states argued that RFRA does not permit an exemption for the Little Sisters because the offered accommodation did not “substantially burden religious exercise.”
The questions during oral argument yesterday suggested that the Court may split 5-4 along ideological lines in favor of the Little Sisters, though a narrow 6-3 or even 7-2 decision is possible. Justice Kagan, for example, acknowledged the sincerity of the Sisters’ religious beliefs and spoke approvingly of a hypothetical regulation that would grant a narrower exemption to those with the “complicity-based beliefs that the Little Sisters have.”
The ace in the hole for the Little Sisters is a bipartisan 1993 statute, the Religious Freedom and Restoration Act (“RFRA”), which forbids the government from imposing a substantial burden on religious exercise unless it uses the least restrictive means. The arguments yesterday made clear that a variety of less restrictive methods for providing access to contraceptives are available. The government can pay for them, contraceptives are often covered in family plans, and they are available on the exchanges. In fact, the states suing to block the religious exemption did not identify a single woman denied coverage because of that exemption.
Seven years of litigation is enough. For the Little Sisters, one can hope that their third time at the Supreme Court will be their last. The government does not need nuns to help distribute contraceptives–it has other less restrictive means available. The Supreme Court should end this case once and for all and hold that RFRA requires an exemption for religious nonprofits like the Little Sisters.