The Catholic order of nuns, the Little Sisters of the Poor, are apparently not little enough or poor enough to avoid governmental coercion and interference with their works of charity. For almost a decade now, they have been involved in court cases resisting governmental attempts, first federal and now state, to require them to incorporate contraceptive services into their health plans. Along with other religious organizations, the Little Sisters opposed the Obama administration and are now opposing state attempts to nullify the Trump administration on this subject. They seek religious liberty in their health care. The cases set for oral argument in the Supreme Court on May 6 are Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania and Trump v. Pennsylvania. The “home” of the Little Sisters is an assisted-living facility for seniors in Pittsburgh; the order has been serving the elderly poor in the United States for 150 years.
After the Affordable Care Act (ACA), President Obama’s pre-eminent policy accomplishment, was signed into law in March 2010, the Obama administration’s Department of HHS began implementing regulations concerning “preventive services,” and in August 2011, issued a “mandate” requiring the inclusion of female contraceptive services, including sterilization and abortifacient drugs, free-of-charge in all private health-insurance policies. It was both a policy and a regulatory initiative. The text of the ACA itself had said nothing about contraception as a health “service,” much less about “mandating” it or requiring it to be provided for free.
HHS’ mandate included an exception for churches and “the exclusively religious activities” of religious orders but not for other activities such as charity. In response to widespread protest and numerous lawsuits, HHS in 2012 modified the mandate to allow a broader exemption for churches and certain religious orders and an “accommodation” for other religious orders and certain religious non-profit employers. The accommodation required religious non-profits to certify their religious objections to contraception as a health service but then designate a third-party who would ensure that its employees would receive contraceptive coverage. Thus, objecting religious organizations still had the responsibility to actively make sure that their employees received contraceptive services, including sterilization and abortifacient drugs.
The Little Sisters of the Poor and other religious organizations, including Wheaton College, Geneva College, East Texas Baptist University, and Hobby Lobby, a corporation organized on religious principles, took the position that they could not actively participate in what they regarded as an undertaking forbidden by their religious beliefs. They filed suit alleging violations of the Religious Freedom Restoration Act (RFRA), which had been enacted in 1993 by an almost unanimous Congressional vote and signed by President Bill Clinton.
Under the RFRA, 42 U.S.C. 2000bb et seq, the federal government may “substantially burden” a “person’s exercise of religion” only if it can show that the burden is the “least restrictive means of “furthering a compelling governmental interest.” Religious exercise is broadly defined to mean “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” The law includes a formal Congressional finding that “the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution.” 2000bb(a).
The Supreme Court resolved the Hobby Lobby case in 2014 by a 5-4 vote by ruling that HHS should have allowed Hobby Lobby the same accommodation as non-profit religious organizations. The Court said “that courts must not presume to determine . . . the plausibility of a religious claim” and moreover, “it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our ‘narrow function . . . in this context is to determine’ whether the line drawn reflects ‘an honest conviction,’ . . . and there is no dispute that [Hobby Lobby’s] does.”
The cases of the Little Sisters and the other religious organizations went all the way to the Supreme Court, where the Court in Zubik v. Burwell in May 2016 heard oral arguments and overturned the lower court decisions in a per curiam decision without any decisions on the merits. The Court went on to state to the parties in all the cases that there appeared to be a way for the parties to reach an accord that allows for “petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans” receive contraceptive coverage. The Obama HHS would not budge, however, and on January 9, 2017—that is, eleven days before President Trump’s inauguration—HHS affirmed the same limited “accommodation” rule.
A change of administrations
Things changed quickly and dramatically. On May 4, 2017, President Trump promulgated an executive order, Promoting Free Speech and Religious Liberty, which required HHS, among other departments, to amend regulations “to address conscience-based objections to the preventive-care mandate.” Whereupon the Departments of Labor and HHS issued new rules on October 13, 2017, “Religious Exemptions and Accommodations For Coverages of Certain Preventive Services Under the Affordable Care Act.” The new rule was based on the RFRA and the Hobby Lobby decision, both of which were extensively discussed and cited in the Federal Register as the legal authorities. It allowed a “religious exemption” from providing contraceptive services for “a church, an integrated auxiliary of a church, a convention or association of churches, or a religious order,” as well as non-profit and for-profit organizations.
For women employees of exempted religious organizations who desire contraceptive services, it was pointed out that there neither the ACA nor any other federal law had provided any right to such services, which were also available in other federal and state programs and were readily available to consumers anyway. Although not at issue in these cases, HHS at the same time promulgated an unprecedented and even broader conscience-based “moral exemption.”
Reacting immediately to the newly promulgated religious exemption, the states of Pennsylvania and New Jersey sued—Pennsylvania v. President of the United States—to block the rules that allowed the exemption to religious organizations. Based on their prior case, the Little Sisters claimed that they had standing and moved to intervene. The main strategy of the two states is purportedly procedural. In their brief in the Supreme Court, they argue that in promulgating the exemption, the Trump administration overstepped the allowed regulatory authority under the ACA and ignored the step-by-step procedures required by the general law of executive agencies, the Administrative Procedures Act (APA). They also contend that the RFRA itself does not permit HHS to issue implementing regulations. The clear thrust of these contentions is that the Obama executive branch could initiate and implement the contraceptive mandate under the ACA but that the Trump executive branch could not amend it.
In addition, however, the two states go on to argue that no violation of religious liberty and the RFRA has occurred. They aver that allowing the Trump religious exemption to the Obama mandate would amount to permitting executive agencies “to disclaim a compelling government interest established by statute.” The pages of their brief making the argument include no reference to the overall content and purpose of the RFRA itself—or even to the First Amendment. They go on to endorse the Third Circuit Court of Appeal’s favorable decision below. That Circuit, they say, denied that “every sincere belief about the operation of federal law” can qualify as a “substantial burden” on the exercise of religion. It is for the courts to make “an objective evaluation of the nature of the claimed burden,” a seeming direct contradiction of Hobby Lobby. The Circuit also held that since the accommodation does not require religious objectors themselves to fund contraceptives, it does not “transform the accommodation into a RFRA violation.”
In his brief filed by the Department of Justice, President Trump, relying on the forceful language of Hobby Lobby, asserts that federal “agencies are not obligated to adopt the narrowest accommodation that would be lawful; they can choose to be more protective of religious rights than might be strictly required.” As for procedure, he argues that the final rules complied with federal administrative law and that “nothing in the APA suggests that procedural defects in the interim rules invalidate the final rules.”
Governments Against the Little
Seventeen mostly Southern states have filed a brief in support of the Little Sisters and President Trump. In addition, 92 Republican members of Congress have done likewise. Of the Democrats, 186 members of Congress, including the party’s two leaders, Senator Chuck Schumer and Speaker of the House, Nancy Pelosi, have joined the case against them. And seventeen states, led by Massachusetts, California, and New York, have joined the case in support of Pennsylvania and New Jersey. The phrases “First Amendment” and “free exercise” do not appear in their brief.
Thus, today, nineteen state governments, agreeing with the prior position of the national government and with two-thirds of the current Democrats in Congress, cannot abide the Little Sisters ministering to the elderly poor according to their own religious beliefs. Similarly beyond toleration was the religious dissent of the solitary baker in Masterpiece Cake (2018), a case in which twenty states joined Colorado in seeking to run the baker out of business.
It is hard to imagine that the Supreme Court will decide the Little Sisters case on procedural and administrative law, especially since Pennsylvania’s and various briefs against the Little Sisters openly espouse a double standard between the Obama and Trump administrations on those questions. Unavoidably at issue are the Religious Freedom Restoration Act, the Hobby Lobby precedent, and the Free Exercise Clause of the First Amendment itself. In the Zubik v. Burwell cases, the Court already avoided substantive conclusions. The Court cannot continue to do so, and its ruling is sure to be historic.
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The featured image is taken from a video on the website of the Little Sisters of the Poor.