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Explainer: The Supreme Court rules nuns do not have to ‘violate their religious beliefs’ to serve

July 09, 2020

In a victory for all Americans and people of faith, the Supreme Court ruled 7-2 that the Little Sisters of the Poor do not have to violate their consciences, upholding two rules issued by the U.S. Department of Health and Human Services that provide an exemption from the Affordable Care Act’s contraceptive mandate on religious and moral grounds.

Justice Thomas wrote the majority opinion and was joined by Chief Justice Roberts and Justices Alito, Gorsuch, and Kavanaugh. Justice Alito wrote a concurring opinion and was joined by Justice Gorsuch.  Justice Kagan wrote an opinion where she concurred in judgment, but not reasoning, and was joined by Justice Breyer.  Justice Ginsberg wrote a dissenting opinion and was joined by Justice Sotomayor. 

What is this case about?

In 2010, Congress passed the Affordable Care Act (ACA), which contained a provision known as the contraceptive mandate that compels employers to include contraceptives in their health care plans. Importantly, this meant that employers were required to provide coverage for all FDA-approved contraceptives, which includes a number of abortifacient drugs. While houses of worship were exempt from this mandate, faith-based organizations were not granted an exemption from the contraceptive mandate.

The contraceptive mandate was the subject of many years of litigation. A coalition of religious organizations, including the ERLC, challenged the contraceptive mandate, arguing that the mandate violated the Religious Freedom Restoration Act. These arguments were ultimately successful, and in 2016 the Supreme Court, in a case called Zubik v. Burwell, ordered the Department of Health and Human Services (HHS) to provide an accommodation from the contraceptive mandate for religious organizations.

In 2018, HHS, responding to Zubik v. Burwell, adopted new regulations that provided protections for religious objectors to the contraceptive mandate. The Trump Administration cited the Religious Freedom Restoration Act (RFRA), which requires the government to pursue its policy goals in the manner that is least restrictive of religious liberty.

Nevertheless, Pennsylvania and New Jersey sued HHS, arguing that these rules should be struck down because they interfere with the government’s interest in providing access to contraception and alleging that the rules violated the ACA and the Administrative Procedure Act (APA). The Little Sisters were back at the Court, asking the Court to uphold the Trump administration’s exemption for religious employers. Without this exemption, the contraception mandate would coerce the Little Sisters of the Poor, along with other religious organizations, to provide contraceptive coverage despite their sincerely held religious objections. 

How did the court reach this decision? 

In his majority opinion, Justice Thomas argued that HHS has the authority to issue exemptions to religious organizations under the ACA and the APA and also that their decision rightfully considered the limitations the Religious Freedom Restoration Act (RFRA) places on the federal government. When issuing these rules, HHS conducted an analysis of its own rules under RFRA and determined that RFRA required HHS to create these exemptions on religious and moral grounds. This is significant because it is an example of the government applying RFRA proactively rather than taking action and waiting for a plaintiff to sue, claiming RFRA protections. Although the Court did not decide the case on RFRA grounds, the majority opinion affirmed this approach to rulemaking by HHS.

Though Justices Kagan and Breyer agreed that religious organizations are entitled to an exemption to the contraceptive mandate of the ACA, they disagreed with the majority’s reasoning. They instead argued that presidential administrations have broad power to issue exemptions, and therefore, the religious organizations should be exempt from the mandate only because the administration allows them to be exempt. They disagreed with the majority’s assertion that HRSA had the statutory authority to issue an exemption on the basis of RFRA.

What is the significance of this case?

This case reaffirms that the government cannot pave over the consciences of religious organizations in pursuit of a policy goal when the government has other options for achieving that goal that do not infringe religious liberty. The right of religious organizations to operate in a manner consistent with their religious beliefs is a fundamental right protected by the Constitution.

Today’s ruling also charts a path forward for public policy debates where Americans disagree about fundamental truths. As Russell Moore said of today’s ruling, “My hope is that now we can move on toward an American public square in which we can have moral and doctrinal debates without seeking to force people into choosing between their deepest held convictions and the callings of service to which those convictions lead. These joyful nuns can now serve the poor without fear that Uncle Sam will try to be their Pope. For all Americans, whatever our views, this is good news.”

How did the ERLC engage in this case?

The ERLC filed an amicus brief (a friend-of-the-court brief) with other religious organizations arguing that the contraceptive mandate does impose a substantial burden on religious organizations.  

Specifically, we argued that forcing Little Sisters to provide contraception coverage as a part of their heath care plans would violate their sincerely held religious beliefs.  We also pointed out that if the exemption was not granted, the Little Sisters would be subject to over 2 million dollars in fines for noncompliance. Both of these reasons prove the mandate imposed a substantial burden.

Further, we argued that the government has other options for providing contraception to Americans that does not require the infringement of religious liberty. As Dr. Moore argued in 2017, “the government can ensure access to contraceptives just fine without forcing nuns to deliver them.”

What does today’s ruling mean moving forward?

Today’s ruling means that HHS’s religious and moral exemptions to the contraceptive mandate were properly issued and finalized under the terms of the ACA and the APA.

Hopefully, today’s ruling is the end of this long saga. However in a separate opinion, Justice Alito expressed that future litigation on these issues is a possibility. The case is now headed back to the circuit courts for further consideration in light of the opinion issued by the Court today. The lower courts will now decide whether HHS issued these rules under other provisions of the APA that were not before the Court in this case.

We hope the lower courts will affirm HHS’s new rules and bring a final end to the litigation over the contraceptive mandate. Russell Moore commented today, “The Little Sisters never wanted to be in court, and are not in any way political activists. All they want is to carry out their mission of serving the poorest and most vulnerable among us. One need not agree with the Sisters on their theological or moral beliefs to recognize that a free country should allow them to serve without state harassment.”

ERLC interns Julia Stamper, Sloan Collier, and Mary Beth Teague contributed to this article.