Supreme Court Upholds Religious Freedom for Little Sisters of the Poor

COMMENTARY: The court’s decision protects faith-based social service groups from controversies unrelated to the needs of those they aim to serve.

A group of Little Sisters of the Poor gathers in New York City on Sept. 24, 2015, during Pope Francis’ visit to the United States.
A group of Little Sisters of the Poor gathers in New York City on Sept. 24, 2015, during Pope Francis’ visit to the United States. (photo: Timothy A. Clary/AFP via Google Images)

Since 2011, Catholic-run organizations have fought the federal government’s demand that they provide abortion pills in their employee health insurance plans. Thanks to the persistence of a group of nuns, the Supreme Court on Wednesday looks to have resolved the controversy once and for all.

In a 7-2 decision, the high court in Little Sisters of the Poor v. Pennsylvania made it abundantly clear that the federal government has the authority to guard against the Affordable Care Act’s “contraceptive mandate” trampling the rights of religious objectors. Put simply, this means that religious employers will not be forced to supply their women employees with abortion pills that kill unborn life.

In fact, the Trump administration had already tried to exempt religious objectors from the ACA abortion pills mandate. But, as we shall see, the abortion industry fought back with a vengeance, and managed to block the exemption. Wednesday’s decision allows the administration’s rule to take effect. Pro-abortion campaigners have now run out of options. This is a decisive victory for freedom of religion.

When Congress enacted the Affordable Care Act in 2010, it required many employers to offer a group health plan or group health insurance coverage with “minimum essential coverage.” With respect to women, the ACA defined coverage to include “preventive care and screenings.” Congress did not define “preventive care,” but left that to be determined by another government agency — the Health Resources and Services Administration (HRSA).

HRSA guidelines mandated coverage of all female contraceptives approved by the Food and Drug Administration including four contraceptive methods that are considered abortifacients. The agency exempted from the abortion pills mandate certain religious employers — such as churches and their integrated auxiliaries — but not all faith-based organizations.

Enter the Little Sisters of the Poor. Founded in Brittany in 1839 by St. Jeanne Jugan to care for old people facing the end of their lives in dire poverty, today they run more than 25 homes in the United States in which they selflessly look after the elderly poor.

These wonderful nuns are, of course, Catholics faithful to the teaching of the Catholic Church. They believe that abortion is a grave moral wrong and that facilitating abortion makes a person morally complicit in such offense. Therefore, the Little Sisters and other Catholic-run organizations decided to take action.  

The Little Sisters and other faith-based organizations sought relief in federal courts from the stiff fines for employers who violated the abortion pills mandate. They cited their religious objection and the Supreme Court’s 2014 decision in Hobby Lobby v. Burwell where the court held that the mandate placed a substantial burden on religious exercise in violation of Religious Freedom Restoration Act (RFRA). 

In 2016, the Supreme Court directed the Obama administration to work with the Little Sisters and other religious objectors to “arrive at an approach going forward.” Although the Obama administration dragged its heels, the Trump administration promptly crafted a broad and acceptable exemption to the ACA’s “contraceptive mandate for religious objectors.

The story of the Little Sisters of the Poor’s fight for religious freedom should have ended when the federal government enacted rules exempting religious objectors from the ACA abortion pills mandate. But it didn’t. 

Attorneys general from Pennsylvania and New Jersey refused to accept the federal government’s regulatory accommodation. They took it to court, claiming the federal government was somehow powerless to guard against its own encroachment on religious freedom. Astonishingly, they convinced the lower courts to issue and uphold a nation-wide injunction blocking the rule from going into effect. The High Court on Wednesday was not so easily swayed. As Justice Clarence Thomas, writing for the majority, explained, “the ACA gives HRSA broad discretion to define preventative care and screenings and to create the religious and moral exemptions.” The majority continued by holding that rules were “free from procedural defects.”   

Done.  End of story.

Having decided the matter, the High Court did not have to address whether the religious objector exemption was required in order to comply with the RFRA. This law commands that the government shall not substantially burden a person’s exercise of religion except in narrow circumstances based on the strongest government interest. RFRA sets an exceptionally high bar, obliging the government to refrain from imposing a burden on religion unless (1) it is in furtherance of a compelling governmental interest and (2) is done in the least restrictive means possible. In important dicta, Thomas commended the current administration for its consideration of RFRA when formulating the exemption.  

The court’s decision frees the federal government from its long and contentious battle with religious groups objecting to the ACA mandate.. More importantly, it protects faith-based social service groups from controversies unrelated to the needs of those they aim to serve. 

Wednesday’s decision is of immense importance for the country. As I outlined in an amicus brief filed with the High Court, Catholics in America historically have contributed to the welfare of the needy and the vulnerable. Today, Catholic-run organizations are the largest non-governmental providers of health care, education, and charitable services to the poor and vulnerable in America. Catholics partner with local and state governments to address the growing foster-care crisis and to find “forever homes” for children in need of adoption. They also minister to the needs of immigrants at our border, run food banks and soup kitchens, support pregnant women in need, stand against human trafficking, and respond to the humanitarian crises that follow natural disasters, armed conflict, and religious persecution. Now, more than ever, the country needs an all-hands-on-deck approach to address the needs of our neighbors. 

The Supreme Court’s ruling on Wednesday means that Catholic-run organizations can continue to serve the needy in our midst. And it also means that the congregation of nuns founded by St. Jeanne — a nurse and former shepherdess from rural France who begged in the streets to raise money for her mission — can finally declare a powerful victory over the mighty abortion industry.

Andrea Picciotti-Bayer is a religious freedom and rule of law specialist for the Judicial Education Project.

Rebecca Shah (l) and Ambassador Sam Brownback

Ambassador Sam Brownback and Rebecca Shah (Season 4 — Ep. 5)

Our guests on this episode of Religious Freedom Matters are Sam Brownback, a former U.S. senator and Kansas governor who served as the U.S. Ambassador at Large for International Religious Freedom from 2018 to 2021, and Rebecca Shah, principal investigator for the Religion and Economic Empowerment Project (REEP) and a senior fellow at the Archbridge Institute.