The Little Sisters Win—For Now

Some of the reactions to the Supreme Court’s recent decision in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania could lead unsuspecting observers to believe that the Trump administration has managed to bring America into the sort of dystopian world envisioned by Margaret Atwood’s The Handmaid’s Tale. But does the decision really “endanger [the] reproductive health of millions,” as the National Organization of Women claims? Such a conclusion ignores many facts, including the reality that the Trump administration built on protections enacted or supported by earlier Democratic administrations and that the rules in question may be altered by Congress or future presidents. Most importantly, no one is attempting to deny anyone access to birth control; the only issue is whether some employers must pay for or be complicit in providing contraceptive coverage when they have religious or moral objections to doing so.

Brief History of the Contraceptive Mandate

In 2010, Congress passed the Patient Protection and Affordable Care Act (ACA). In the constitutional order envisioned by America’s founders, the law clearly exceeds Congress’s delegated powers. But that ship sailed in 1937. Even so, America’s founders would have expected Congress to specify what the law required. Alas, that ship has sailed as well.

Rather than delineating ACA’s requirements, Congress left many details up to administrative agencies. Congress did mandate that organizations with 50 or more employees provide women with “preventive care and screening” without “any cost sharing requirements,” but it charged the Health Resources and Services Administration and other agencies with the task of spelling out the details. Under Obama-era rules, employers were required to offer 20 contraceptive methods, including four that may cause abortions. Recognizing that some organizations had religious objections to providing such coverage, the Obama administration exempted religious houses of worship and denominations from these requirements.

Many religious organizations did not fall under this first exemption, including the Little Sisters of the Poor, an “international congregation of Roman Catholic women” that runs homes for the elderly. In response to complaints that such groups should be protected, Obama administration officials issued additional rules exempting them from the contraceptive mandate provided they self-certify that they meet certain criteria. The Little Sisters of the Poor challenged this certification requirement, arguing that it forced them to take “actions that directly cause others to provide contraception or appear to participate in the Departments’ delivery scheme.” Doing so, they contended, would violate their sincerely held religious beliefs.

The Obama administration was willing to protect churches and religious organizations, but not businesses. It argued that such entities do not have the right to religious liberty. The United States Supreme Court rejected this position in Burwell v. Hobby Lobby Stores (2014). The majority held that the Religious Freedom Restoration Act of 1993, which was passed without objection in the House, 97-3 in the Senate, and was signed into law by President Bill Clinton, protected the owners of a closely held corporation from having to provide abortifacients to employees (the protestant owners of Hobby Lobby did not object to other forms of birth control).

Two years after this decision, the Supreme Court remanded the Little Sisters case to lower courts in the hopes that the parties could find a compromise. Litigants were unable to reach an agreement, so in 2017 the Trump administration resolved the conflict by issuing new rules exempting organizations that had religious or moral objections from the contraceptive mandate. The states of Pennsylvania and New Jersey objected that these rules violated both the ACA and the Administrative Procedure Act (APA), the federal statute that regulates administrative lawmaking.

Opinions of the Court

In Little Sisters of the Poor v. Pennsylvania, five justices, in an opinion authored by Justice Thomas, held that “the plain language of the statute [ACA] clearly allows the Departments to create the preventative care standards as well as the religious and moral exemptions.” As well, they found no reason to believe that the Trump administration violated the Administrative Procedure Act. Justices Kagan and Breyer concurred with the majority, although they suggested that lower courts might later find the rules to be “arbitrary and capricious” and thus violate the APA.

The majority’s decision is good news for organizations that have objections to providing, or being complicit in providing, certain forms of contraception to their employees. But celebrations may be short-lived as nothing prohibits Congress or, more likely, a future presidential administration, from revising these rules to require religious organizations to choose between their religious convictions and their ministries.

Religious liberty is not a trump card that must win every time. But it is difficult to imagine an interest compelling enough to force the Little Sisters of the Poor to violate their religious convictions regarding birth control.

More encouraging for those who believe that religious liberty should be robustly protected is Justice Alito’s concurring opinion, which was joined by Justice Gorsuch. He relied heavily on the Religious Freedom Restoration Act, which stipulates that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” except “if it demonstrates that application of the burden to the person” is “in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.”

Justice Alito contended, accurately in my estimation, that the regulations in question created a substantial burden on the ability of Little Sisters to freely exercise their faith. It is also difficult to show that there is a “compelling interest” in requiring every employer to provide free contraceptive coverage, as both Congress and the Obama Administration exempted many businesses from this burden. And even if there was a compelling interest, there are far less restrictive ways of providing such coverage. In the final analysis, RFRA clearly requires “an exemption for the Little Sisters and any other employer with a similar objection to what has been called the accommodation to the contraceptive mandate.”  

Justice Ginsburg, in a dissent joined by Sonia Sotomayor, complained that “[t]oday, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.” She emphasized that 70,000 to 126,000 women could lose administratively mandated contraception coverage as a result of the new rules (126,000 is a far cry from the “millions” that NOW thinks are in danger, but what are a few decimal points among friends?). Yet no one is forced to work for these organizations and, at worst, these women are returned to the situation they would have found themselves in 2009. This is nowhere near the Margaret Atwood-inspired headlines and coverage offered by NOW, Slate, NBC, and other organizations.

This decision points to a dysfunctional constitutional order. If Congress respected the founders’ Constitution, it wouldn’t pass legislation in this area. That Pennsylvania and New Jersey used valuable resources to challenge federal administrative rules rather than to provide free contraception directly to women whom they believe need it suggests that something is amiss with our current understanding of federalism.

It is perhaps too late in the day to complain about Congressional overreach or the rise of the administrative state. Fortunately, from the early colonies to the present day, many civic leaders have dedicated themselves to protecting the ability of Americans to act upon their religious convictions. When neutral laws of general applicability keep citizens or organizations from acting on their sincerely held religious convictions, these leaders have crafted exemptions or accommodations to allow them to freely exercise their faiths. With respect to the ACA, exemptions were created by the Obama administration, and they were expanded by the Trump administration. One may argue that the latter went too far, but it was hardly doing something unprecedented.

Third Party Harms?

It has become increasingly popular for progressive law professors and activists to complain that religious liberty protections are inappropriate and, perhaps, violate the Establishment Clause if they cause “third-party harms.” Justice Ginsburg picked up this torch in her dissent. But concerns about third-party harms are nothing new. For instance, religious pacifists have been granted exemptions from military service since colonial times, and surely increasing non-pacifists’ chances of being drafted constitutes a harm to non-pacifists who do not want to serve in the military. Yet over a hundred years ago, the Supreme Court held that such exemptions do not violate the Establishment Clause. Indeed, justices have rejected Establishment Clause challenges to every religious accommodation case to reach the Court, with one exception—Estate of Thornton v. Caldor (1984). It may come as no surprise that this is the only precedent Justice Ginsburg cited to support her position.

Consider as well the relative weight of “harms” in other areas of law, such as freedom of speech. The Supreme Court has said there is a constitutional right to burn the American flag as a form of political protest and has protected demonstrations by members of the Westboro Baptist Church at military funerals despite the great harm such acts cause to veterans and other citizens. We should grieve and object to such actions, but we would lose much if we sacrificed the freedom of speech to protect sensitive observers from these offensive acts.  

Religious Liberty Should be Robustly Protected

Religious liberty is not a trump card that must win every time. Legislatures should ban religiously motivated actions when they have a compelling reason to do so. And they may mandate positive acts, such as requiring parents to provide medical treatment for their children even if they have religious objections to doing so. But it is difficult to imagine an interest compelling enough to force the Little Sisters of the Poor to violate their religious convictions regarding birth control. If state governments believe strongly that all women should have access to free contraception, they should provide it for them at their own expense rather than attempt to coerce organizations like the Little Sisters of the Poor.

Reader Discussion

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on July 13, 2020 at 09:34:11 am

“Religious liberty is not a trump card that must win every time. But it is difficult to imagine an interest compelling enough to force the Little Sisters of the Poor to violate their religious convictions regarding birth control.“

True, because the Contraception Mandate, added to the Patient Affordable Health Care Act by an Administrative Agency, after The Patient Affordable Health Care Act became Law, was unconstitutional from the start.

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on July 13, 2020 at 09:38:03 am


“Drawing on this theme from his Morrison dissent, the next year Justice Scalia delivered the Holmes Lecture at Harvard Law School that was then published as The Rule of Law as a Law of Rules.67 In that lecture, Justice Scalia expanded upon the notion that judging on a case-by-case basis according to the judge’s sense of justice is not judging at all—that it is instead merely ad hoc decisionmaking untethered to law. That was true, he thought, at least for federal courts exercising the judicial power of the United States;68 for federal judges to exercise common-law powers on a case-by-case basis threatened to disrupt the Constitution’s structure of separate, enumerated powers that are divided among three branches. Without a legal rule to guide (and therefore control) a court’s decisionmaking, that court is dangerously free simply to reach results that it finds congenial.”

“But once the Constitution’s structure was violated, as he believed was the case with the Sentencing Commission’s single-function delegation, then there was no balancing to be done, no questions of degree to be decided—it was just unconstitutional.” (See page 2127 Conclusion )


In requiring “employers to cover a certain standard of healthcare in the plans they offer their employees”, Congress cannot violate The First Amendment in regards to Religious Liberty, or The Eighth Amendment in regards to Excessive Fines thus The Supreme Court erred when in declaring the Federal Statute, known as The Patient Protection and Affordable Care Act (PPACA) to be a Tax, they did not declare the obscene penalty placed by an Administration Agency, on those employers who desired to provide their employees with Health Insurance, sans Contraception coverage, was a violation of both The First and Eighth Amendments of The United States Constitution.

“The analysis of proportionality is made up of three sub-principles: adequacy, necessity, and proportionality stricto sensu.”


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on July 14, 2020 at 08:56:43 am

I apologize for the missing link; That should read https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=2301&context=law_faculty_scholarship

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on July 14, 2020 at 10:45:20 am

The interminable Little Sisters litigation is to the Roberts' Court what Jarndyce vs. Jarndyce was to Charles Dickens in Bleak House, a never-ending entanglement in the octopusian arms of courts, legal rules and lawyers. And that is a crime of deliberate moral turpitude inflicted by the Democrat Party against Christianity.

In our current summer of violence, starting last month with the sacrilege of destroying Fr. Juniper Serra's sacred, historical and morally-appropriate California Mission statues and continuing yesterday with the defacement and arson of Christian missions and churches across the nation, it is apparent that the Democrat Party's thuggery has turned its ugly face of political violence against Christianity. The thugs are coming for God, as they must in every revolution, as they did in 1789 and 1917, as they did in Mao's Revolution in 1949 and as they continue in 2020 with Red China's religious gulags of ruthless suppression of millions of Christians and mass imprisonment, brain-washing and cultural destruction of millions of Muslims.

Obama began the Democrat Party's war on Christianity in 2012 with with his unlawfully-adopted birth control mandate followed by his relentless legal harassment of the Little Sisters under the Affordable Care Act. Obama then doubled down on his religious abuse by refusing to apply the federal requirements of RFRA in imposing his birth control mandate and then by negotiating in bad-faith for a compromise with the Little Sisters, only to abruptly terminate negotiation, reject compromise and finalize his birth control mandate, adopting a tightly-constrained, punitively-narrow exception for religious freedom, an exception so hypocritical as to constitute an insult to the Catholic Church, forcing the Little Sisters to go to court to defend their faith. When Trump later tried to ameliorate the damage done by Obama by broadening the religious exemption regulations, he was challenged by Blue State governors. In that latest round of litigation against the Little Sisters, the Supreme Court last week granted a mere stay of Catholic execution pending further review by the District Court and the Third circuit and further legal challenge and harassment of the Little Sisters by Democrats. Such legal harassment was literally invited by Justice Kagan's dissent which specified the myriad ways in which (she alleges) the Trump exemption rules are arbitrary and capricious. Furthermore, the election of a Democrat president will mean the total elimination of Trump's lenient regulations for religious exemption from the birth control mandate, forcing the Little Sisters matter back to court (where as of June 2020 it had already been ensnared for 8 years.) But even if the Kagan ploy fails to generate a 2020 assault on the Little Sisters, in 2021 those now unnamed power-seekers who will in fact run the Biden Administration will resume the Democrat Party's judicail attack on the Little sisters and on Christianity.

Thus, in fact, the Democrat Party's legal harassment of the Little Sisters and Catholicism has no end in sight. The lawsuits should collectively be renamed Jarndyce vs. Jarndyce in recognition of their close resemblance to Dicken's mockery of injustice wrought by slow strangulation at the hands of scheming lawyers and entrapment by the vanity of an unaccountable judiciary.

At least Jarndyce vs. Jarndyce, unlike the tide of lawsuits against the Little Sisters, was not litigation incited by revolutionaries seeking to smite God.

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on July 15, 2020 at 16:00:47 pm

The reason that the travails of the Little Sisters will never end is that the conflict between government and religion is never-ending. The conflict arises because both the desire for spiritual fulfillment and the quest for power are part of human nature, and often conflict. Secular and religious authorities compete for priority in the popular conscience.

Justice Holmes claimed that one page of history is worth a volume of logic. A review of extensive history will readily review the same conflicts that affect the Little Sisters. The persecutions of Christians in the Roman Empire, Henry the VIII's dissolution of the monasteries, the Martyrs of Compiègne, Mexico's anti-religious Constitution of 1917, the turning of Orthodox churches into museums by the Bolsheviks, etc. all provide examples of church-state conflict. These conflicts are frequently exposed by religious objection to progressive thought, as exemplified by Archbishop Galen's denunciation of Nazi euthanasia efforts. They also result from religious participation in education, an area that progressive ambitions seeks to monopolize.

Progressives are constantly at war with religious institutions because they are in never-ending competition for public attitudes and popular allegiances. This warfare, which is millennia old, ranges from violent suppression, to legalistic burdens to passive-aggressive contempt. Progressives, seeing the conflict as one between enlightened secularism and backward superstition, will begrudge tolerance when popular sentiment requires it, but never give up on the idea that religion is a competing nuisance that right-thinking people will eventually relinquish. This notion is observed in the treatment of religion during the COVID-19 outbreak, and by the treatment of religion in the Affordable Care Act. The approach of progressives is to treat religion as no more than a quirk of proletarian imagination, at best an emotional indulgence, or superstitious diversion, that must yield to more progressive priorities. When religious issues get to the Supreme Court, it is met by an attitude of smugness and historically ignorant dismissiveness. It is treated as something frivolous that will disappear when progressives explain how their way is better. We see this in the flabby reasoning of Justices Souter and Stevens, and now in the the thoughts of Kagan and Breyer.

The Free Exercise clause did not decide the issue; the Religious Freedom Restoration Act did not end the conflict, just as earlier governmental antagonisms of religious belief, violent and otherwise did not end it. The progressive enterprise is to create the sense that religion is subordinate to their own objectives and that it is to be accommodated only on terms that they decide. The issue is not really whether or not certain women can get contraceptives, it is that the Little Sisters be forced to provide it. The issue is not motivated by healthcare concerns, but by an ideological desire to stick a thumb in the eye of a rival that has a mysterious cultural influence that the enlightened will not countenance. The goal of people like Kathleen Sebelius and Barack Obama and Elena Kagan is to show religious people who is boss, somehow thinking that human nature will reject itself and follow their desires.

They will be disappointed.

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.