GROVE CITY, PA — July 15, 2020 — The 181-year-old religious order, the Little Sisters of the Poor—unlikely litigants before the high court—finally got a victory. For over six years this charitable order has had to defend itself against the federal government under the Obama administration and, more recently, against dogged state administrations in Pennsylvania and New Jersey. Now, the court has awarded the nuns a victory.
Why have there been years of litigation on this matter? Simply put, governments (state and federal) have insisted that the sisters must provide contraceptives—including abortion-inducing drugs—in the health plans they offer to their employees. The Little Sisters (these nuns take a vow of chastity) and other religious entities have refused to comply since 2014, repeatedly facing the threat of huge, destructive fines under the Affordable Care Act (ACA).
The sisters’ refusal comes from a deeply held religious conviction which requires them to protect innocent human life. If they furnish medical insurance under ACA requirements, they will be providing drugs which extinguish or prevent the formation of life in the womb. By doing so they would be forced to violate their religious beliefs. Unfortunately, the original exemption fashioned under the ACA by Health and Human Services (HHS) recognized “churches,” “auxiliaries,” “conventions,” and even small employers, but it did not include religious orders like the Little Sisters, faith-based charities, religious colleges, or seminaries.
The picture brightened temporarily for these gentle, yet tenacious, nuns when President Trump fulfilled a campaign promise by calling for revised regulations which expanded the exemption from the contraception mandate to include the Little Sisters and other religious non-profits. The regulations, besides expanding the exemptions for religious employers, created an additional exemption for those employers who had “sincerely held moral objections” which put them in conflict with the contraceptive mandate. The regulations were developed by the new administration’s Health Resources and Services Administration (HRSA), a division of the HHS.
It was these newly minted regulations that two states, Pennsylvania and New Jersey, opposed and which resulted in the latest lawsuit. The challenging states took the position that HRSA and HHS (called in the litigation the “Departments”) had no substantive authority to act as they did and certainly no right to grant expanded exemptions. Moreover, if they did have such authority, they did not follow the proper procedure to propose the new regulations under the Administrative Procedures Act.
Relying on the language of the Affordable Care Act itself, the court disagreed on all counts with the challenging states. The HRSA did have the authority to issue new regulations and the accompanying exemptions. Justice Clarence Thomas summarized the majority position: “We hold that the Departments had the authority to provide exemptions from the regulatory contraceptive requirements for employers religious and conscientious objections.”
That conclusion was not difficult for the court. Ironically, in its hurry to pass the Affordable Care Act in 2010, Congress provided the most general and wide-ranging powers for the HRSA to issue regulations. Secondly, in issuing regulations, the court found that the administration had taken the proper procedural steps. The sisters and others were now exempt from the contraceptive mandate.
The decision had one surprise: Many thought that the court would uphold the new regulations, albeit under the Federal Religious Freedom Restoration Act (RFRA). RFRA prevents the federal government from “substantially burdening” a person’s exercise of religion. There was little doubt that the contraceptive mandate produced such a burden on the Little Sisters with heavy fines for non-compliance. However, Justice Thomas said that since the language of the ACA itself already gave the necessary grounds for justifying new regulations and exemptions, there was no need to consider the application of RFRA. Justice Thomas went on to say, however, that the contraceptive mandate of the ACA was “capable of violating the provisions of RFRA,” which is a signal about how the court might rule in the future.
In summary, the Little Sisters have won this round—though it is a qualified victory. A new administration could revamp the contraceptive regulations fashioning them to be narrower, like those of the Obama era. The win would have been stronger had it been based upon the provisions of the Religious Freedom Restoration Act. Nevertheless, the court has provided protection for religious liberty and life when both were threatened by the regulatory apparatus of the federal and the state governments.