The Little Sisters of the Poor won another victory Wednesday in their years-long battle to assert their First Amendment right to religious freedom against the contraceptive mandate in Obamacare.
In a 7-2 decision, the Court upheld a Trump administration regulation protecting religious liberty, sending the Little Sisters’ case back down to the lower courts for further adjudication.
The fight goes back seven years, to the implementation of Obamacare in 2013, when the Obama administration required religious groups to provide contraceptives through health insurance policies they provided as employers.
The Little Sisters of the Poor, a Catholic charitable organization serving impoverished elderly people, fought back in court. In 2016, the Supreme Court remanded the case back to the lower courts.
After President Donald Trump took office in 2017, he issued an executive order requiring the Department of Health and Human Services (HHS) to create new rules that would protect religious groups like Little Sisters of the Poor from having to comply with mandates that violated their faith.
But Democrats pushed back, suing to block the Trump administration’s new rule, and winning a nationwide injunction against it — forcing the nuns back to the Supreme Court.
In a decision written by Justice Clarence Thomas, the Court found that HHS had the authority to write the new regulations protecting religious faith, and canceled the nationwide injunction.
Thomas wrote (citations omitted):
For over 150 years, the Little Sisters have engaged in faithful service and sacrifice, motivated by a religious call- ing to surrender all for the sake of their brother. “[T]hey commit to constantly living out a witness that proclaims the unique, inviolable dignity of every person, particularly those whom others regard as weak or worthless.” But for the past seven years, they—like many other religious objectors who have participated in the litigation and rulemakings leading up to today’s decision— have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs. After two decisions from this Court and multiple failed regulatory attempts, the Federal Government has arrived at a solution that exempts the Little Sisters from the source of their complicity-based concerns—the administratively imposed contraceptive mandate.
We hold today that the Departments had the statutory authority to craft that exemption, as well as the contemporaneously issued moral exemption. We further hold that the rules promulgating these exemptions are free from procedural defects.
In a concurring opinion, Justice Samuel Alito wrote that the HHS rule was also compelled by the Religious Freedom Restoration Act (RFRA): “I would hold 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 (or something very close to it). I would bring the Little Sisters’ legal odyssey to an end.”
Justice Elena Kagan wrote a concurring decision, but said that more litigation was needed to determine whether the HHS regulation was “arbitrary and capricious” — a question that the lower courts had not yet decided.
The dissent, written by Justice Ruth Bader Ginsburg and joined by Justice Sonia Sotomayor, complained that “hte Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree” (original emphasis). They added: “[T]his Court 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.”
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His new book, RED NOVEMBER, is available for pre-order. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.