At long last, on Wednesday the Department of Health and Human Services issued a new rule that finalizes the interim religious exemption that the Little Sisters of the Poor received via executive order in October 2017. This follows years of litigation wherein the Little Sisters have been fighting to preclude the state from forcing them to offer birth control to employees, against their desire due to their religious beliefs. The contraception mandate was always an incredible demonstration of government overreach — forcing religious organizations to offer birth control was even more so.
The Supreme Court has twice dealt with this issue, once with Burwell v. Hobby Lobby, which exempted corporations with religious beliefs from abiding by the contraception mandate. In Zubik v. Burwell the Supreme Court consolidated several cases, including Little Sisters, but simply vacated the ruling that forced them to abide by the mandate and threw them back to the lower courts to examine.
This has left Little Sisters open to litigation — both California and Pennsylvania sued. The states claim an exemption is unconstitutional because it violates the establishment clause of the Constitution. However, this additional litigation is a grievous overreach. To put it more bluntly, as Mark Rienzi of the Becket Fund, the attorney representing the Little Sisters of the Poor, said on a press call on Thursday, “This should be the end … it was never the case that the government needed nuns to provide employers with birth control.”
To be clear, the Trump administration is not getting rid of the contraception mandate (which I actually think they should do). However, through Title X, which is the “only federal grant program dedicated solely to providing individuals with comprehensive family planning and related preventive health services,” anyone who qualifies can get birth control.
The government should not have the right to force an employer to offer birth control — at the very least, when there are so many other ways to retrieve it. Above all, the government definitely should not be in the business of spending taxpayer dollars litigating cases that would force religious groups (like a bunch of nuns a la Little Sisters of the Poor) to provide said item.
Firming up this rule was a necessary step for the Trump administration, showing that its executive orders do have some teeth. However, for those on the other side who don’t like it, there are checks and balances, which is why there are still ongoing lawsuits. (Also, now you know how conservatives felt about mandated health insurance.) Interestingly, the new rule cites information from the Guttmacher Institute, a former arm of Planned Parenthood, which found the contraception mandate hadn’t changed the rate of contraception.
In the end, while relief is welcome, it’s not guaranteed. Any litigation involving the Little Sisters on this topic was always excessive. “This was always a bit of a ginned up controversy,” Rienzi said on the press call. Hopefully, this will end the years-long battle the Little Sisters have had to engage in just to protect their own religious conscience and keep the government from unnecessary and unconstitutional overreach.
Nicole Russell (@russell_nm) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is a journalist who previously worked in Republican politics in Minnesota.
