Victory for the Little Sisters

A historic order of nuns who minister to the elderly poor gained a reprieve from the Supreme Court Wednesday. A majority of justices upheld a Trump administration rule exempting employers with religious and moral objections from providing contraception in group healthcare plans.

But the ruling may not bring an immediate end to the seven-year legal battle by the Little Sisters of the Poor.

In a 7-2 decision, the majority held that in 2017 the U.S. Department of Health and Human Services (HHS) created the exemption in a way that squared with the Affordable Care Act (ACA), and the exemption was not procedurally defective. “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,” wrote Justice Clarence Thomas. “We hold today that the Departments had the statutory authority to craft that exemption.”

It’s a significant victory for faith-based employers. But it may not end legal challenges from Pennsylvania, New Jersey, and other states, says Kim Colby, director of the Christian Legal Society’s Center for Law and Religious Freedom. Colby points to a separate concurring opinion by Justice Elena Kagan, joined by Justice Stephen Breyer, which she says lays out a “roadmap” for states to continue challenges to the HHS rule for being arbitrary and capricious.

“This rule and the concept behind it and the HHS mandate itself have been so litigated and scrutinized that it’s really impossible to say that what the department did was without a rational basis,” said Colby, who is hopeful that lower courts will choose to bring the matter to an end after the Supreme Court’s rebuke. The decision Monday sends the case back to an appellate court after its initial ruling against the Little Sisters.

A new presidential administration’s withdrawal of the exemption could also bring the Little Sisters back to court. In that event, said Colby, the Religious Freedom Restoration Act (RFRA) becomes critical: It would be the primary basis on which the nuns could argue for the protection of their conscience rights. The 1993 federal law prohibits the federal government from substantially burdening the exercise of religious freedom without showing it has a compelling interest and can meet that interest in the least restrictive way.

Justice Samuel Alito wrote in a concurring opinion that the court could have ended the possibility of more legal challenges in the case if it had based its decision on RFRA: “I would bring the Little Sisters’ legal odyssey to an end.” Justice Neil Gorsuch joined Alito’s concurring opinion.

Even though five of the nine justices clearly believe RFRA would protect the Little Sisters, even that doesn’t end litigation against the embattled nuns, said Colby. “The problem is that all along this has not really been about the law but was a political tool the previous administration used to rally its base in the 2012 election,” she said.

Colby adds that challengers rely on fostering the unfounded idea that the exemption threatens women’s contraceptive rights. But only a small minority of employers will claim the exemption, and the government has multiple ways of providing contraceptives to women who want them. “Though they know they will likely lose, they may well see a continuation of the lawsuit as good politically,” Colby said.

Dissenting Justice Ruth Bader Ginsburg, who during oral arguments earlier this year said the government was “tossing to the wind” women’s “seamless, no-cost insurance coverage,” castigated the majority for a decision that “leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets.”

Yet, for now, the Little Sisters can rejoice. Whatever future litigation comes, it appears they and all religious employers have a path to provide employees with health insurance without violating their consciences.