After over a year in limbo, the Department of Health and Human Services (HHS) finally issued a new rule last Wednesday that will finalize the interim religious exemption the Little Sisters of the Poor received in October 2017, precluding the government from forcing them to provide birth control to their employees.
The Little Sisters have been forced to engage in years of ongoing litigation, fighting over the Obamacare contraception mandate from HHS and the religious exemption to that law. A religious organization, such as a group of nuns, should never have been forced to fight for their right to live freely in accord with their religious conscience. That right remains in danger so long as being forced to buy birth control for other people remains a power of government that can affect constitutionally guaranteed rights such as the free exercise of religion.
The History of the HHS Mandate
The HHS contraception mandate has a controversial, lengthy history filled with expensive lawsuits and battles between federal and state governments and private, religious organizations. While in office, President Obama issued an interpretation of Obamacare that forces private companies to pay for birth control within their health insurance offerings.
Unhappy about this, Hobby Lobby contested and eventually the Supreme Court heard their argument, wherein they claimed they should be exempt due to their religious beliefs. The Catholic Church regards chemical contraception as a sin because it views sex as inherently ordered towards creating children, and contraception destroys that aim. Also, of course, nuns pledge celibacy, and as such have no need for contraception.
The Supreme Court agreed the Little Sisters deserved to live in accord with their faith, and ruled that for-profit corporations with similar beliefs would be exempt, citing the federal Religious Freedom Restoration Act. It was the first time the Supreme Court recognized a corporation’s claim of religious belief, but the ruling did not address whether companies are protected by the Constitution’s free exercise clause.
Enter Little Sisters of the Poor: Because they run more than 25 homes for poor elderly people in the United States, they were counted as falling under the contraceptive mandate. They sued, asking that certain religious organizations, in addition to churches, be allowed to be exempt from the contraception mandate because of their religious beliefs. Their case was consolidated with several others to the now-infamous Zubik v. Burwell. The Supreme Court essentially vacated the Court of Appeals ruling and tossed the cases back to their appellate courts to be reconsidered.
Following President Trump’s election, he issued an executive order in May 2017 that attempted to solidify the exemption which Zubik v. Burwell addressed. On October 6, 2017, HHS provided the Little Sisters and other religious nonprofits an interim religious exemption from having to provide services such as the week-after pill in their employee health insurance. However, it didn’t have much teeth to it although many groups appreciated the effort.
In the meantime, activist state governments decided to get involved, taking advantage of the flimsy Zubik ruling. They then actively sued the Little Sisters, hauling them into court yet again. The attorney general of California, Xavier Becerra, and the attorney general of Pennsylvania, Josh Shapiro, sued the Little Sisters of the Poor last year, claiming their exception to the HHS contraception mandate was unconstitutional.
The HHS Mandate Never Should Have Happened
One cannot underscore how asinine it is that the government would force nuns to offer birth control to anyone. Furthermore, under exactly what authority did the Pennsylvania and California AGs pursue their lawsuits? Why do they presume that of, all the employers in the United States, religious organizations should be unable to offer a religiously oriented exception?
On the press call on this topic Thursday, I asked Mark Rienzi, president of Becket Fund for Religious Liberty (which represents the Little Sisters of the Poor), this question. He explained that California and Pennsylvania’s AGs believe the religious exception violates the Establishment Clause of the First Amendment. They believe that by providing an exception to religious organizations the government would be showing a preference for religious groups over non-religious ones.
In her scathing dissent in Burwell v. Hobby Lobby, however, Justice Ruth Bader Ginsburg never said the exception violated the Constitution’s Establishment Clause. Neither the Obama administration nor the states suing have not been able to find one person who would be adversely affected––or unable to get birth control––if there were a religious exemption for folks like Little Sisters. There are simply a plethora of ways to access this item, and the government need not be involved at all. So not only is continuing litigation against the Little Sisters of the Poor pointless, but it always was — that is, if the point is actually to ensure contraception access instead of to burden religious exercise.
In a statement, Rienzi said, “For the last four years the Little Sisters have said that the government has other ways to provide services like the week-after pill without involving nuns.” Not to mention, one-third of Americans, including the U.S. military, New York City, Pepsi, and Visa, are already exempt from the mandate. Why not nuns, for heaven’s sake?
What Will Happen Now To The Little Sisters Of The Poor?
Ideally, California and Pennsylvania will drop their lawsuits. Given this new rule, current cases should be thrown out. It’s also worth noting the Little Sisters have only found relief through the benevolence of the current administration in power, an administration friendly to religious liberty is likely to not always hold power. Thus the exemption is only a temporary relief, and Congress must pass better laws.
The Little Sisters should not need to continue to defend their constitutional rights due to a ticked off and partisan attorney general. It’s therefore also key that the Supreme Court, when faced again with a Zubik-like case, make a decisive ruling. Groups should not feel relief that their rights are protected or fear they will not be based on whichever political party happens to be in power at the time.
For the time being, however, the Little Sisters can move on. Rienzi put it well: “This long, unnecessary culture war is now almost over. All that is left is for state governments to admit that there are many ways to deliver these services without nuns, and the Little Sisters can return to serving the elderly poor in peace.”