The Little Sisters of the Poor are an international congregation of Roman Catholic women religious who have been caring for the elderly poor throughout the world for 175 years.  This unlikely group has been fighting one government or another for nearly a decade seeking a religious exemption from the Affordable Care Act’s contraceptive mandate.  Can you identify which of the following statements about the Little Sisters and their legal battle is false? 

A. The bipartisan Religious Freedom and Restoration Act of 1993 (signed by President Bill Clinton) requires any federal law that imposes a substantial burden on religion to be the least restrictive means of accomplishing the government’s objective. 

B. 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. 

C. The Little Sisters’ case pits religious liberty against women’s ability to access contraceptives. 

Let’s take these statements one at a time:

A. TRUTH!  The Religious Freedom and Restoration Act of 1993 imposes strict scrutiny on any federal law that imposes a substantial burden on religion.  That standard requires any federal law that substantially burdens religion to be narrowly tailored and to be the least restrictive means for the government to accomplish its purposes.  This means the government must explore and exhaust all other avenues of accomplishing its objectives before substantially burdening religion.

B. TRUTH!  The Affordable Care Act exempts certain health plans that were in effect in 2010 when the law was enacted from some standards in the law.  These “grandfathered” plans do not have to comply with the contraceptive mandate.  According to the Kaiser Family Foundation, in 2019, 22% of companies still offer at least one grandfathered health plan, and 13% of covered workers are enrolled in such a plan.

C. LIE! In Zubik v. Burwell, an exasperated Supreme Court direct 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 Sisters’s case does not pit religious liberty against women’s access to contraceptive coverage.  Other government programs, family plans, and the health care exchange all provide other least restrictive ways of ensuring that women have access to contraceptives. 

Bottom line:  The Little Sisters of the Poor should finally get their win in court.  Even if the government may sometimes burden religious exercise, RFRA requires the federal government to use the least restrictive means.  Here, there are other ways for the government to provide access to contraceptives.  For more information, check out IWF’s article on the Little Sisters’ case.