The Little Sisters Should Finally Get Their Win

The telephonic oral argument in Little Sisters of the Poor v. Pennsylvania yesterday suggested that the Little Sisters may finally get their win before the Supreme Court.  The Little Sisters have been battling for their conscience rights for nearly a decade.  The Catholic nuns, who have provided hospice care to the elderly poor and dying for 175 years, are an unlikely foe.  And yet, they have been in one or another government’s litigation cross-hairs for seven years.  

The problem is that the Little Sisters are committed to their religious beliefs.  Their sincerity put them on a collision course with the Obama Administration’s implementation of the Affordable Care Act (“ACA”).  Under the ACA, employer insurance plans are required to include women’s “preventive care,” which the Department of Health and Human Services (HHS) interpreted to include every one of the FDA’s approved contraceptives. 

Notwithstanding the bipartisan Religious Freedom and Restoration Act of 1993 (“RFRA”), which forbids federal law from imposing a substantial burden on religious exercise unless it uses the least restrictive means, HHS did not exempt religious non-profits, like the Little Sisters.  The only accommodation offered by HHS was an opt-out certification option under which the non-profit’s insurance plan would still pay for the contraceptives.

As one of the Little Sisters, Constance Viet, explained in a New York Times op-ed, the opt-out provision was no accommodation at all.  Under it, the Little Sisters authorized the use of their religious health plan to offer services that violated their beliefs.  For the nuns, it wasn’t a money question, but a moral one.  Sister Viet compared the opt-out to high schools that remove soda machines because they don’t think soda is good for children:

It doesn’t matter that the soda companies will pay for the machines. And the school’s decision doesn’t prevent children from getting soda elsewhere. The school simply doesn’t want to be responsible for providing something it believes is bad for its students. It is the same with us.

Notwithstanding the Obama Administration’s reluctance to accommodate religious exercise, the Affordable Care Act exempted many employers, such as Exxon and Visa, because they had “grandfathered” plans. 

The Little Sisters challenged the ACA regulations and ended up before the United States Supreme Court back in 2016.  In that case, Zubik v. Burwell, an exasperated Court told the government to work it out, directing HHS “to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’” 

As Zubik makes clear, the Little Sister’s case does not pit religious liberty against women’s access to contraceptive coverage.  There are surely other ways of ensuring that women have access to contraceptives.  Other government programs, family plans, and the healthcare exchange all provide options.  This was one point yesterday’s oral argument clarified: the States could not identify a single woman denied coverage because of the religious exemption.

In this regard, another case involving the contraceptive mandate, Burwell v. Hobby Lobby is instructive.  In Hobby Lobby, the Court held that the contraceptive mandate as applied to certain businesses violated RFRA.  In key language, the Court found that the government “has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion.”  In fact, one option available to the government was to “assume the cost” of the contraceptive mandate.  That option exists today. 

In 2017, the Trump Administration issued regulations which expanded the exemption to include religious nonprofits, like the Little Sisters.  And that’s when Pennsylvania and New Jersey sued.  They argued that RFRA does not authorize an exemption for the Little Sisters at all because the proposed opt-out does not even “substantially burden religious exercise.”   

The Little Sisters would surely disagree.  And the Supreme Court has long been wary of governments who second-guess sincere religious beliefs. 

Perhaps knowing the weakness of its RFRA points, Pennsylvania quibbles with the way the Trump Administration passed its new regulations and the attention it paid to comments.  All of this talk of administrative law is a red herring, however.  None of the administrative law points make a difference if the Court holds, as it should, that RFRA not only allows but requires an exemption from the contraceptive mandate for sincerely held religious beliefs. 

A holding that RFRA requires a religious exemption is the simplest way to decide this case and the only way to ensure the conscience rights of women like the Little Sisters are protected from administrative changes going forward.  It’s time to call a spade a spade: forcing nuns like the Little Sisters to provide birth control is not only absurd it also violates federal law.  

Erin Hawley is a senior legal fellow at Independent Women’s Forum, senior fellow at the Kinder Institute for Constitutional Democracy, and a former clerk to Chief Justice John G. Roberts Jr.