Little Sisters of the Poor Score Huge SCOTUS Victory for Religious Freedom, and Why It’s Not Over Yet

In a 7-2 decision today, the U.S. Supreme Court ruled that the religious exemption language created by a federal agency to help religious organizations like the Little Sisters of the Poor avoid being coerced by the federal government to violate their conscience, was well within the agency’s authority given to it by Congress. Justice Clarence Thomas wrote the majority opinion; Justice Samuel Alito wrote a concurring opinion, as did Justice Elena Kagan. Justice Ruth Bader Ginsburg wrote a dissent, joined by Justice Sonia Sotomayor.

The nuns, like dozens of other religious organizations, have been fighting for their rights of conscience since Obamacare was passed in 2010, when the Obama-era U.S. Department of Health and Human Services (HHS) crafted a list of “preventive services” employers were required to include in company health plans. That list included contraceptives, some of which could possibly cause an early abortion, plus sterilization. This list came to be known as the “HHS mandate” or “contraceptive mandate,” and many faith-based employers, who had never included those before in their healthcare plans, objected.

After years of litigation and a victory in the lower federal courts for the nuns and other groups, the Trump Administration attempted to expand the religious exemption to cover the various concerns. It also included moral objections to contraceptives in addition to religious ones. That exemption was challenged in the federal courts by a number of blue states.

Justice Thomas’ opinion for the Court concluded that the Trump-era HHS expansion of the religious and moral exemption was well within the authority granted to HHS by Congress.

“For over 150 years, the Little Sisters have engaged in faithful service and sacrifice, motivated by a religious calling to surrender all for the sake of their brother,” Thomas writes. “‘[T]hey commit to constantly living out a witness that proclaims the unique, inviolable dignity of every person, particularly those whom others regard as weak or worthless.’ […] But for the past seven years, they—like many other religious objectors who have participated in the litigation and rulemakings leading up to today’s decision— have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs. After two decisions from this Court and multiple failed regulatory attempts, the Federal Government has arrived at a solution that exempts the Little Sisters from the source of their complicity-based concerns—the administratively imposed contraceptive mandate.

“We hold today that the Departments had the statutory authority to craft that exemption, as well as the contemporaneously issued moral exemption. We further hold that the rules promulgating these exemptions are free from procedural defects. Therefore, we reverse the judgment of the Court of Appeals and remand the cases for further proceedings consistent with this opinion.”

The nuns have been represented by the Becket Fund for Religious Liberty. “America deserves better than petty governments harassing nuns,” said Mark Rienzi, president of Becket, in a press release. “The Court did the right thing by protecting the Little Sisters from an unnecessary mandate that would have gutted their ministry. Governments don’t need nuns to distribute contraceptives. But they do need religious groups to care for the elderly, heal the sick and feed the hungry. These governments all have real work they ought to be doing rather than dividing people with old and unnecessary culture wars.”

But the Little Sisters are not out of the woods yet, legally speaking. As Justice Alito noted in his concurrence, the case now goes back to the lower federal courts, where the blue state governments that initiated the lawsuits “are all but certain to pursue their argument that the current rule is flawed on yet another ground, namely, that it is arbitrary and capricious and thus violates the [Administrative Procedures Act]. This will prolong the legal battle in which the Little Sisters have now been engaged for seven years—even though during all this time no employee of the Little Sisters has come forward with an objection to the Little Sisters’ conduct.”

Alito would have preferred to resolve the case in such a way as to avoid another round of litigation, but he recognized that such is the nature of deciding only the narrow issue before the justices. However, in Alito’s opinion, the Religious Freedom Restoration Act of 1993 not only allows HHS to draft the religious exemption that it did, but indeed requires such an exemption. That being the case, further lower court proceedings are unnecessary, in his opinion.

As the case travels back to the lower courts, we’ll keep you apprised of any new developments.

The case is Little Sisters of the Poor v. Pennsylvania.

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Photo from Becket Law

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