The Little Sisters’ Supreme Court Saga Could Be Far From Over

Victory prevailed this week in their seven-year legal battle, but what will come next for the cause for conscience?

The Little Sisters of the Poor, shown praying in one of their chapels, won their case July 8. But Justice Samuel Alito, in his concurrence, warned that the court’s decision left the door open for continued litigation.
The Little Sisters of the Poor, shown praying in one of their chapels, won their case July 8. But Justice Samuel Alito, in his concurrence, warned that the court’s decision left the door open for continued litigation. (photo: Courtesy of Becket)

WASHINGTON — While the Little Sisters of the Poor celebrated yet another Supreme Court victory on Wednesday in their seven-year legal battle to receive a religious exemption from the Affordable Care Act’s contraception mandate, many are questioning if the fight will continue, especially given the upcoming presidential election.

The court affirmed 7-2 that the Trump administration did have the authority to exempt the sisters from being compelled to cover contraceptives for their employees. However, Justice Samuel Alito, in his concurrence, warned that the court’s decision left the door open for continued litigation against the exemption from the states.

Shortly after the ruling, both Pennsylvania Attorney General Josh Shapiro, who sued the Trump administration over the rule granting the exemption, and Democratic presidential candidate Joe Biden, a Catholic, signaled that they would continue to fight the decision.

The issue began in 2011, when the Little Sisters and other religious groups objected to the Obama administration’s contraceptive mandate. The Department of Health and Human Services (HHS) offered the groups an accommodation that would delegate the contraception coverage to a third party, but they objected that the process still left them complicit in the coverage and sued in 2013.

In May 2016, the Supreme Court remanded the case to appeals courts with the direction that the administration and the organizations work out a compromise. 

In 2017, the Trump administration issued a religious and moral exemption to the Affordable Care Act. But the attorneys general of California, Pennsylvania and New Jersey attempted to block it through an injunction, claiming that the exemption violated the Administrative Procedure Act (APA) and that the state had a compelling interest in providing contraceptive coverage. The 3rd and 9th Circuit Courts subsequently ruled against the sisters, and the Supreme Court once again took up the case in January 2019.

In the majority decision Wednesday, Justice Clarence Thomas wrote that the administration “had the authority to provide exemptions from the regulatory contraceptive requirements for employers with religious and conscientious objections.”

Thomas did not address the administration’s argument that the Religious Freedom Restoration Act (RFRA) compelled or authorized the exemption, but wrote, “in light of our holding that the ACA provided a basis for both exemptions, we need not reach these arguments.”

He did note that “it was appropriate for the Departments to consider RFRA.”

“The only question we face today is what the plain language of the statute authorizes,” Thomas said. “And the plain language of the statute clearly allows the Departments to create the preventive care standards as well as the religious and moral exemptions.”


Alito’s Prediction

However, Justice Alito, joined by Justice Neil Gorsuch, cautioned in his concurring opinion that “the Commonwealth of Pennsylvania and the State of New Jersey 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 APA. 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 acknowledged “the Court’s desire to decide no more than is strictly necessary,” but wrote that he would have held “not only that it was appropriate for the Departments to consider RFRA, but also that the Departments were required by RFRA to create the religious exemption” and thus “bring the Little Sisters’ legal odyssey to an end.”

Ryan Anderson, an expert in religious liberty at the Heritage Foundation, told the Register that the case is likely far from over.

“Undoubtedly, the states that sued the Trump administration for protecting the Little Sisters will continue to do so,” he said. “And, as soon as the Trump administration leaves office and an administration hostile to religious liberty comes to D.C., you can expect these Trump protections to be watered down or eliminated. As much as I hope today’s ruling will end the legal struggle for the Little Sisters, I fear it will continue.”

Shapiro stated Wednesday that “this fight is not over.” The Pennsylvania attorney general said following the decision that the state will continue this challenge and “return to the lower courts to address whether the exemptions are arbitrary and capricious.”

“Today’s ruling was a matter of administrative law, on whether the Trump administration had the authority to protect the Little Sisters and whether they followed the proper procedures,” Anderson added. “So, if and when a hostile administration removes these protections, the Little Sisters will still have a RFRA case.”

The possibility of a hostile administration removing the protections is not a remote one, given that the presumptive Democratic presidential nominee and former Vice President Joe Biden stated following the decision that “there is a clear path to fixing” the Supreme Court’s ruling by “electing a new President who will end Donald Trump’s ceaseless attempts to gut every aspect of the Affordable Care Act.”

“If I am elected, I will restore the Obama-Biden policy that existed before the Hobby Lobby ruling: providing an exemption for houses of worship and an accommodation for nonprofit organizations with religious missions,” he vowed.

The “accommodation” Biden mentioned in the statement is the same one that the Little Sisters of the Poor were forced to battle and was called a farce and a morally meaningless sort of “accounting trick” by columnist Charles Krauthammer in 2012. More than 500 religious leaders and scholars, including New York Cardinal Timothy Dolan and Archbishop Joseph Kurtz of Louisville, Kentucky, signed a letter in 2012 stating that the “‘accommodation’ changes nothing of moral substance and fails to remove the assault on religious liberty and the rights of conscience which gave rise to the controversy.” 

Eric Kniffin, a religious-liberty attorney who co-authored two amicus briefs in support of the Little Sisters, also acknowledged the possibility of more challenges for the Little Sisters or others like them. In a Federalist Society teleforum following the decision, he asked, “Has this decision finally ended legal controversy about the contraception mandate? Unfortunately, I think the answer is No.”

“Two of the opinions explicitly anticipate that the 3rd Circuit will be looking at whether the Trump administration’s exemptions were arbitrary and capricious under the Administrative Procedure Act,” he noted. This was in reference to Alito’s concurrence and Justice Kagan’s separate concurrence in which she questioned “whether the exemptions can survive administrative law’s demand for reasoned decision-making,” saying “that issue remains open for the lower courts to address.”


Hope That Little Sister’s Fight Is Over

The Trump administration, in contrast, celebrated the July 8 decision and seemed hopeful that this would mark the end of the long legal fight.

“Joe Biden’s decade-long war against Catholic nuns and the Little Sisters of the Poor is finally over,” Trump 2020 Deputy Communications Director Ali Pardo said in a statement. “Today’s Supreme Court ruling is a landmark win for religious liberty. Unlike Joe Biden, President Trump has been a staunch defender of religious freedom since taking office and will always fight to defend communities of faith.”

Mark Rienzi, president of Becket, which represented the Little Sisters in this case, told the Register that he doesn’t think it’s likely that the legal battle will drag on and is hopeful that “sanity will prevail.”

“I don’t think it’s terribly likely that the states will at least have any good claims to hassle the Little Sisters with,” he said. “If they do, it’s running into a brick wall, because we’ve won three times at the Supreme Court for a reason. And that reason is that this is a silly fight; there’s no need for governments to force nuns to do this.”

Rienzi said that the majority opinion “was pretty clear that the federal government actually had an obligation to address the religious objections; and when you did that, you had an obligation not to downgrade them and pretend that they weren’t that big a deal.”

“If the Departments did not look to RFRA’s requirements or discuss RFRA at all when formulating their solution,” Justice Thomas wrote in the majority opinion, “they would certainly be susceptible to claims that the rules were arbitrary and capricious for failing to consider an important aspect of the problem.” Thomas also noted that, “under RFRA, the Departments must accept the sincerely held complicity-based objections of religious entities. That is, they could not ‘tell the plaintiffs that their beliefs are flawed.’”

“Once you say that the government must do those things, it’s pretty hard to see what else they could have done,” Rienzi said. “If the government is obligated to think about it and can’t downgrade the religious beliefs, then they have to have the exception.”

He said that Justice Alito’s concurrence “gives the last sentence and puts the exclamation point on it a little bit more,” but “the majority pretty soundly made clear that if this is done the right way, the government has to consider the religious objections and has to take them seriously; and if you do those two things, there’s only one answer, which is that the sisters have to get an exemption.”

Ultimately, Rienzi called the decision “a broad win at a time when the country often seems kind of divided.”

“The sisters shouldn’t have had to come to the Supreme Court,” he concluded, “but every time they’ve come, they’ve gotten big, smashing wins; and I think that sends a pretty clear signal that this is a silly fight for the other side, and it ought to end.”


The Abortion Lobby’s Fight

Maureen Ferguson, senior policy adviser for The Catholic Association, told the Register that the court’s decision is “a huge victory,” but she doesn’t know “if this is the end of it.”

“Given the aggressive nature of the abortion lobby and the Democratic Party on this issue and the fact that they dragged the Little Sisters of the Poor to the Supreme Court three times, I would take Justice Alito’s prediction very seriously,” she said.

Ferguson said that while the Little Sisters’ Supreme Court wins should “be definitive,” you “still have the AG and the presidential candidate of the Democratic Party say ‘we’re going to continue to legally harass these nuns under threat of millions of dollars of fines.’”

She commented that Biden’s vow to return to the original pre-Hobby Lobby mandate should cause voters to “have their eyes wide open because this is the policy that originated in the Obama-Biden administration, and Biden is making it very clear that he would continue that policy in a Biden administration: of forcing nuns to facilitate the distribution of contraception and abortion-inducing drugs.”

“Nobody should be confused about where Joe Biden stands on these issues,” Ferguson added. “He is a hundred percent in the pocket of the abortion lobby. Nobody should be fooled by his rhetoric around these issues.”

Biden has been publicly corrected by the USCCB in the past for falsely claiming in 2012 that “no religious institution … has to pay for contraception” under the mandate.

Ferguson added that this comes at an especially troubling time for the sisters, who “take care of the most vulnerable population to coronavirus, the elderly poor, and they’re doing it selflessly. Joe Biden is threatening to go back to a policy of massive government fines for these frontline health-care workers? It’s completely outrageous.”

Lauretta Brown is the Register’s Wasington-based staff writer.