Supreme Court victory protects the right of the Little Sisters of the Poor “to serve the elderly without violating our faith.”

By Dave Andrusko

Earlier today, The Supreme Court gave freedom of religion and conscience a vigorous and much-needed boost when it ruled 7-2 that the Little Sisters of the Poor are not bound by a mandate, issued by HHS under a provision of ObamaCare that would force them to provide health insurance coverage for products and procedures they find morally unacceptable.

At issue was a new rule issued by HHS in 2017 which protected religious non-profits, including the Little Sisters of the Poor. A number of states sued and, as we reported, in 2019 the Third Circuit Court of Appeals placed a nationwide injunction on HHS’s new conscience protection rule. The Trump Administration appealed as did the Little Sisters of the Poor, who were defended by The Becket Fund for Religious Liberty.

Today the justices dissolved the nationwide injunction and sent the case back to a lower court. (More about that below.)

The Becket Fund for Religious Liberty aptly summarized the decision:

WASHINGTON – The Supreme Court ruled in favor of the Little Sisters of the Poor 7-2 today, allowing them to continue serving the elderly poor and dying without threat of millions of dollars in fines. In Little Sisters of the Poor v. Commonwealth of Pennsylvania, the Little Sisters made their third trip to the Supreme Court…Today’s ruling grants them protection to freely serve the elderly poor without violating their conscience.

While the vote was 7-2, Justice Kagan filed an opinion joined by Justice Breyer which invites further future challenges. As legal scholar Amy Howe wrote, Kagan “agreed with the result that the majority reached, but not with its reasoning.”  

[S]he noted that when the cases return to the lower courts, those courts will have to address an issue that neither they nor the Supreme Court have previously reached: Whether the exemptions are “arbitrary and capricious” – that is, the product of reasoned decision-making. And, she suggested, “the exemptions HRSA [Health Resources and Services Administration] and the Departments issued give every appearance of coming up short” because they are too broad. For example, Kagan suggested, “even publicly traded corporations” can “claim a religious exemption,” as can employers “with only moral scruples.”

But that’s for another day. Justices Thomas and Alito, the judicial workhorses in this case, offered powerful arguments why (as Thomas concluded), 

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. Therefore, we reverse the judgment of the Court of Appeals and remand the cases for further proceedings consistent with this opinion.

In his concurring opinion (joined by Justice Gorsuch), Justice Alito warned the case in a different form would back before the High Court:

We now send these cases back to the lower courts, where 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. I understand the Court’s desire to decide no more than is strictly necessary, but under the circumstances here, I would decide one additional question: whether the Court of Appeals erred in holding that the Religious Freedom Restoration Act (RFRA) does not compel the religious exemption granted by the current rule. If RFRA requires this exemption, the Departments did not act in an arbitrary and capricious manner in granting it.

Alito added

And in my judgment, RFRA compels an exemption for the Little Sisters and any other employer with a similar objection…

For her part, Justice Ginsburg was (not to put too fine a point on it) bitter. In her dissent (which Justice Sotomayor joined), she wrote

In accommodating claims of religious freedom, this Court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs.  Today for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.

Perhaps to Justice Ginsburg this modest accommodation to religious freedom smacks of zealotry, but not to the rest of us. Let me close with two quotes.

The first is from Mother Loraine Marie Maguire of the Little Sisters of the Poor, who said, “We are overjoyed that, once again, the Supreme Court has protected our right to serve the elderly without violating our faith.” 

The second is from Mark Rienzi, president of Becket. “America deserves better than petty governments harassing nuns. The Court did the right thing by protecting the Little Sisters from an unnecessary mandate that would have gutted their ministry.” 

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