The Little Sisters of the Poor take fight for religious liberty to the Supreme Court

March 25, 2016

This week, the Supreme Court of the United States heard oral arguments for one of the most significant cases involving religious liberty it has taken up in decades —Little Sisters of the Poor v. Burwell.  

So who are the Little Sisters, and how did they end up at the highest court in our land?

The Little Sisters of the Poor are an organization of nuns who offer homes and care for impoverished elderly people around the world. Their lives are given to the hundreds of humble tasks of caring for the elderly poor, feeding them, meeting their physical needs and providing them with heavenly hope.

They pay for their work by a tradition of begging. Through daily rounds to local businesses asking for food and other items to offset their operating expenses, small fundraising campaigns and weekend visits to churches, the nuns scrape together their meager budget, trusting that God will provide.  

And now, through complicated regulations stemming from the Affordable Care Act (ObamaCare), the government is giving them the option to either violate their conscience or pay huge fines, fines that would dramatically cut into their service to the poor.

Their case, which involves The Little Sisters of the Poor and other religious organizations, is a consolidation of several cases all asking the Court to do the same thing—uphold their constitutional right to freely exercise their religion. Specifically, they are asking to be allowed to exercise their sincerely held religious belief about the sanctity of life by not being forced to provide access to their employees to contraception with abortive effects.  The issues at hand arose when the Affordable Care Act was passed into law and certain parts of the law had to be filled in by regulation. One of those regulations dealt with health insurance plans providing various types of contraception, including some that Christians of numerous denominations consider to be equivalent to abortion.

The Little Sisters of the Poor, and many other religious organizations that aren’t covered by a church exemption to this regulation, objected because it violates their conscience to be a part of providing the mandated abortion pills. The government tried various ways to make it better, but each one failed to address the issues of conscience raised by the groups.

The government’s ultimate solution allowed the groups to abstain from paying for the drugs, but required them to give their employees a form that entitles the employee to free abortion-pills financed by the government. The government argues that it is providing a sufficient accommodation for the religious groups, because they no longer have to directly pay for the controversial drugs. Yet, their “solution” still requires the Little Sisters to affirmatively act and participate in the government's scheme to provide contraception and abortifacients.

David French at National Review succinctly explains why this is a significant problem for religious liberty:

But here’s the problem: The certification is not an “opt out,” it’s a document that actually empowers a third party to provide free abortion pills. In that way, it’s more like a voucher than an opt-out. Imagine if the government said to a religious employer, “We’re not going to require you to pay for abortions, but we will require you to provide employees with a document that entitles them to a free abortion at the Planned Parenthood clinic down the street.” Would anyone think for a moment that respected religious liberty? Yet that’s the essence of the government “accommodation” here. The Little Sisters object to providing an abortion/contraception voucher — a voucher that could be redeemed for free abortifacients at the discretion of a third-party administrator. 

The government argues that it is simply providing a way for the Little Sisters to object, and then the insurance provides the contraception without any cost to the Little Sisters. But, again, this is not an issue about money; this is an issue of conscience.

The Little Sisters' conscience will not allow them to take any action that leads to the dispersal of abortifacients. Right now, by filing a form or writing to HHS to tell them of their religious objection and the details of their insurance plan, the Little Sisters are still complicit. After they take this action, their insurer is required to provide contraception free of charge. 

The Little Sisters view this as a sin. Their religious freedom is burdened. 

So after many cases involving this violation of religious liberty wound their way through the lower courts, the Supreme Court agreed to consolidate the cases and hear The Little Sisters of the Poor v. Burwell this term.

In oral arguments at the Supreme Court on Wednesday, the eight justices seemed predictably divided. The four reliably liberal justices all posed questions that clearly supported the government’s position. Chief Justice Roberts and Justice Alito seemed in favor of the Little Sisters of the Poor and other religious organizations. Justice Thomas is believed to favor them as well. With Justice Scalia’s seat being vacant, that leaves Justice Kennedy as the usual swing vote.  

The Washington Post’s breakdown of oral arguments provides insight into what each justice is thinking.

If Justice Kennedy sides with the conservatives as he did in Hobby Lobby, then the outcome will most likely be 4-4. When there is a tie, the decision of the lower court reigns.  In this case, religious organizations have lost in seven U.S. Circuits, with only one U.S. Circuit upholding religious liberty. Another option would be for the Court to call for the case to be reargued next term, presumably after a new justice has been appointed by the President, confirmed by the Senate and sworn in.

In the next few months, we must take to our knees in prayer for the justices, specifically, Justice Kennedy, as they decide the fate of religious liberty in our country as we know it.  The sincerely held religious beliefs in this case are just the tip of the iceberg of the religious liberty implications of Supreme Court jurisprudence which could weigh the regulatory state’s agenda above our fundamental right to freely exercise our religion.  

There is a lot at stake for America in this case, but thankfully we have a Heavenly Father who holds all things together. Especially as Easter approaches and we remember the sacrifice on the cross and the defeat of sin and death on our behalf, we can take comfort and continue fighting—for religious liberty for all people, for nuns who serve the elderly poor and for the hearts, minds and souls of all of our fellow Americans.

Palmer Williams

Palmer Williams serves as General Counsel and Senior Policy Advisor for the ERLC.  Palmer specializes in legal and policy analysis related to international human rights, sanctity of life, and government affairs. As a licensed attorney specializing in international law, she has extensive experience advocating for human rights on the international stage, … Read More