It’s the case of the never-ending case.
This Wednesday, the Little Sisters of the Poor will be back at the Supreme Court after nearly 10 years of litigation over whether or not the group is required to include contraceptives in its healthcare plans. The group has already been to the court once over the same issue, which the court threw back to the states, and the Trump administration attempted to put it to rest in 2018. But after Pennsylvania and New Jersey sued President Trump for executive overreach, the Little Sisters are facing round two.
The group, a Catholic women’s religious order, has been in battle with first the federal and then state governments since 2011, when it refused to comply with a mandate prescribed by the Obama-era Affordable Care Act. The mandate, which provoked lawsuits from a number of conservative and religious groups, provided only very narrow exemptions related to contraception, forcing many faith-based institutions to offer in their healthcare plans what they considered abortifacients.
The Little Sisters sued in 2013, after failing to secure an exemption. In their case, part of a class-action lawsuit filed by the Becket Fund for Religious Liberty, a nonprofit legal group, the Little Sisters alleged that the government was forcing them to “abandon their Catholic beliefs” by complying with the mandate.
By violating the mandate, the Little Sisters would face fines that threatened to bankrupt the order. But because of the Religious Freedom Restoration Act, First Amendment free speech and religion clauses, and the Fifth Amendment due process clause, the lawsuit said, the government could not lawfully enforce the mandate or impose fines on the nuns.
Two district courts ruled against the Little Sisters before the Supreme Court accepted the case for review in 2016. By this time, the court had already heard and decided on Burwell v. Hobby Lobby Inc., a landmark decision in which closely held for-profit corporations were granted exemptions from the contraception mandate, in accordance with the companies’ owners’ “sincerely held” beliefs.
The Hobby Lobby decision relied heavily on RFRA, with the court finding in a 5-4 decision that because the ACA mandate did not provide the “least restrictive” means for advancing the government’s interests, companies such as Hobby Lobby were protected from it.
Shortly after, the Supreme Court granted a temporary restraining order for the Little Sisters, as well as other religious groups, that allowed it to opt out of paying for the contraception offered in its healthcare plans. But many groups, the Little Sisters included, were not satisfied with this decision, since they would still be required to offer the contraceptives, even if they weren’t picking up the tab.
The Supreme Court in 2016 consolidated the Little Sisters case with six other ones raised by religious nonprofit groups in Zubik v. Burwell. The court was poised to deliver a decision in favor of the Little Sisters, but the death of Justice Antonin Scalia in February 2016 left only eight judges on the court — and raised the possibility of a 4-4 deadlock.
Such a vote would mean that the rulings of the previous appeals courts would remain in place. To avoid that outcome, the Supreme Court unanimously vacated the previous decisions of the appeals courts and asked that each plaintiff clarify with the court in its respective state ways in which it could avoid becoming a contraception provider.
Throwing the issue back to the states meant that, although the threat of fines was lifted, the Little Sisters still had to contend with the intricacies of extracting itself from the contraception business. Through the end of the Obama administration, the issue was left unresolved.
In 2017, President Trump issued an executive order saying the Little Sisters is protected from “undue interference from the federal government.” And in 2018, Trump’s Health and Human Services Secretary Alex Azar built upon the executive order by exempting religious nonprofit groups from Obamacare’s contraception mandate.
Trump soon baked his defense of the order into his pitch to religious voters. He often mentions it at campaign rallies and in speeches, including at the 2020 March for Life, where Trump became the first president to address the annual anti-abortion event in person. Trump’s 2020 campaign is already using the issue as a weapon against former Vice President Joe Biden as well, since the case arose under his watch.
Former Rep. Tim Huelskamp, a member of Trump’s campaign outreach to Catholics, told the Washington Examiner that Trump will likely keep bringing up the Little Sisters when he criticizes Biden’s record.
“He can have Joe Biden and the Democratic Party hating the Little Sisters of the Poor,” he said. “That is just not a good position to be in for the Democratic Party.”
Despite Trump’s interventions, however, the issue remains unresolved. After the executive order and the revision of the mandate rules, New Jersey and Pennsylvania sued the Trump administration, alleging executive overreach. The cases were consolidated in Little Sisters of the Poor v. Pennsylvania, which the court will hear by phone (a first) on Wednesday.
In their lawsuits, the states argue that the Supreme Court’s 2016 order, allowing religious nonprofit groups to opt out of paying for contraceptives, means that the Obamacare mandate is no longer in conflict with the RFRA. The Little Sisters counter that the opt-out is not enough and that RFRA does protect the group from involving itself in contraceptives.
In its filing with the Supreme Court, the Little Sisters argues that the application and “the balance that RFRA commands” over religious liberty disputes must be settled in this case — or it may actually never end.
“Without resolution from this Court as to whether RFRA requires — or at least permits — a religious exemption,” the filing says, “the parties are doomed to continue litigating this exceptionally important question in perpetuity.”
