Supreme Court ruling on contraception mandate is major win for religious freedom

Written by William C. Duncan

July 8, 2020

In a pair of 7-2 rulings Wednesday, the U.S. Supreme Court clarified the scope of religious liberty protections. In the first case – Little Sisters of the Poor v. Pennsylvania – the majority ruled the federal government was free to protect religious freedom.

Majority opinion

The Supreme Court rejected the argument of Pennsylvania and New Jersey that the federal government lacked the authority to create a rule that accommodated the objections by some religious organizations to providing contraception to their employees. The majority opinion, written by Justice Clarence Thomas, relied on the language of the Affordable Care Act, which allowed HHS to “provide for” coverage, which is a broad grant of authority to the agency and allows it to establish both mandates and exemptions. Since Congress did not add specific qualifications to this authority, the agency was free to choose those it did.

The majority also decided that the agency was free to consider the Religious Freedom Restoration Act (which prevents the federal government from enacting laws that burden religious practice unless absolutely necessary) in making its rule.

The majority rejected two other arguments from the states challenging the exemption: First, that HHS enacted the 2018 rule without following required procedures. Second, that the agency did not keep an “open mind” when creating the rule. On this point, the court understandably concluded it did not have the authority to create a new open-mindedness requirement to the law governing how executive agencies can set policies.

The conclusion neatly sums up the ruling:

For over 150 years, the Little Sisters have engaged in faithful service and sacrifice, motivated by a religious calling 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.

Concurring opinions

Justice Samuel Alito joined the majority opinion but wrote an additional opinion (joined by Justice Neil Gorsuch) arguing that the court could also hold that “the Departments were required by RFRA to create the religious exemption (or something very close to it)” so that there would be no chance for the challenging states to come up with a new argument to prolong the Little Sisters’ “legal odyssey.”

Justice Elena Kagan (joined by Justice Stephen Breyer) agreed with the result but not the reasoning of the majority opinion. In her opinion, she argued that the 2018 rule was not “reasoned decisionmaking” and could still be struck down on that ground.

Dissenting opinion

Justice Ruth Bader Ginsburg (joined by Justice Sonia Sotomayor) said the majority ignored the interests of others potentially impacted by the decision “in its zeal to secure religious rights to the nth degree.” Specifically, they felt that the government should not be able to protect the rights of religious employers if doing so might impact the ability of women to have their employers pay for contraceptive coverage.

The history

Little Sisters of the Poor v. Pennsylvania involved a longstanding controversy. When the Affordable Care Act was enacted in 2010, it included a provision delegating to the Department of Health and Human Services the authority to create legal rules that would require employers to provide certain insurance benefits to women at no cost. HHS created a rule mandating contraceptive coverage in all employer health plans, but it included a narrow religious exemption that applied only to churches.

Taken together, the mandate and narrow exemption meant that businesses, nonprofits, and other employers with a religious mission would need to provide contraceptives to employees at no cost, even when doing so would be contrary to their religious beliefs. If they did not, they would face steep fines.

A spate of lawsuits followed. The Supreme Court ruled in 2014 that the mandate unnecessarily infringed on the religious freedom of Hobby Lobby because the government could have ensured access to contraceptives without requiring religiously motivated employers to offer it. Then, in 2016, it took another case challenging the mandate – ruling that the government must come up with a rule that took an alternative approach to accommodating religious freedom concerns of employers.

The government failed to do so in 2016. But in 2018, under a new administration, it created a new rule that broadened the religious exemption to include employers with sincere religious or moral objections to providing contraceptives.

That rule could have ended the controversy for organizations like Little Sisters of the Poor, who were now exempt from the mandate on religious grounds. But the state of Pennsylvania (and later New Jersey as well) stepped in and sued, arguing HHS did not have the authority to create this religious accommodation.


The bottom line

The court overwhelmingly allowed the federal government to create broad protection for religious freedom. This is an important, and hopefully enduring, victory for those who care for others out of religious motivation and ask only to do so in ways consistent with their faith.

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