Today, the Supreme Court issued a 7-2 decision in Little Sisters of the Poor v. Pennsylvania. In this case the Justices held that religious organizations could be exempt from a government mandate that they provide contraception coverage for their employees.
In 2010, Congress passed the Affordable Care Act which included a mandate for employers to provide contraception for their employees. Although churches were exempt from the mandate, religious employers and nonprofits were not. The Trump administration issued an exemption to this mandate for religious employers. Pennsylvania and New Jersey sued, 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 government violated the ACA and the Administrative Procedure Act when issuing the rules. The Little Sisters of the Poor asked the Court to uphold the exemption for religious organizations.
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 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 files for noncompliance. Both of these reasons prove the mandate imposed a substantial burden.
Justice Thomas wrote the majority opinion and was joined by Chief Justice Roberts, Justices Alito, Gorsuch, and Kavanaugh. Justice Alito wrote a conuccence joined by Justice Thomas. Justice Kagan wrote a concurrence and was joined by Justice Breyer, while Justice Ginsberg and Sotomayor dissented.
Below are key quotes from both the majority opinion and the dissents highlighting how the court reached their decision. The quotes are organized by topics the justices covered in their writings. Page numbers from the court’s decision are given for each quote, but legal citations are omitted for clarity of reading.
For more information on this case and how it will further impact religious organizations, check out our explainer.
Majority Opinion: Justice Thomas joined by Chief Justice Roberts and Justices Alito, Gorsuch, and Kavanaugh
The Trump Administration can provide an exception to the mandate:
“We hold that the Departments had the authority to provide exemptions from the regulatory contraceptive requirements for employers with religious and conscientious objections.” (2)
“By its terms, the ACA leaves the Guidelines’ content to the exclusive discretion of HRSA. Under a plain reading of the statute, then, we conclude that the ACA gives HRSA broad discretion to define preventive care and screenings and to create the religious and moral exemptions.” (16)
“The dissent resists this conclusion, asserting that the Departments’ interpretation thwarts Congress’ intent to provide contraceptive coverage to the women who are inter- ested in receiving such coverage.” (17)
“Contrary to the dissent’s protestations, it was Congress, not the Departments, that declined to expressly require contraceptive coverage in the ACA itself.” (18)
“The only question we face today is what the plain language of the statute authorizes. And the plain language of the statute clearly allows the Departments to create the preventive care standards as well as the religious and moral exemptions.” (18)
“We focus our inquiry on whether the Departments satisfied the APA’s objective criteria, just as we have in previous cases. We conclude that they did.” (25)
The Religious Freedom and Restoration Act was the appropriate basis for the HRSA exception:
“It is clear from the face of the statute that the contraceptive mandate is capable of violating RFRA.” (20)
“If the Departments did not look to RFRA’s requirements or discuss RFRA at all when formulating their solution, they would certainly be susceptible to claims that the rules were arbitrary and capricious for failing to consider an important aspect of the problem.” (22)
Let the Little Sisters serve:
“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…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.” (26)
“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.” (26)
Concurring Opinion: Justice Alito joined by Justice Gorsuch
HRSA was right to provide a mandate on the basis of RFRA:
“Under our decision in Hobby Lobby, requiring the Little Sisters or any other employer with a similar religious objection to comply with the mandate would impose a substantial burden.” (6)
“The contraceptive mandate imposes a substantial burden on any employer who, like the Little Sisters, has a sincere religious objection to the use of a listed contraceptive and a sincere religious belief that compliance with the mandate…makes it complicit in the provision to the employer’s workers of a contraceptive to which the employer has a religious objection.” (10)
“I would hold not only that it was appropriate for the Departments to consider RFRA, but also that the Departments were required by RFRA to create the religious exemption. . . . I would bring the Little Sisters’ legal odyssey to an end.” (19)
There is no compelling government interest to force nuns to provide contraception:
“In Hobby Lobby, the Government asserted…that [it] had a compelling interest in “ensuring that all women have access to all FDA-approved contraceptives without cost sharing.” Now, the Government concedes that it lacks a compelling interest in providing such access, and this time, the Government is correct.” (10)
“Thus, in order to establish that it has a ‘compelling interest’ in providing free contraceptives to all women, the Government would have to show that it would commit one of ‘the gravest abuses’ of its responsibilities if it did not furnish free contraceptives to all women. (10-11)
“The ACA—which fails to ensure that millions of women have access to free contraceptives—unmistakably shows that Congress, at least to date, has not regarded this interest as compelling.” (11)
“First, the ACA does not provide contraceptive coverage for women who do not work outside the home. If Congress thought that there was a compelling need to make free contraceptives available for all women, why did it make no provision for women who do not receive a paycheck?” (11)
“Second, if Congress thought that there was a compelling need to provide cost-free contraceptives for all working women, why didn’t Congress mandate that coverage in the ACA itself? Why did it leave it to HRSA to decide whether to require such coverage at all?” (11-12)
“Third, the ACA’s very incomplete coverage speaks volumes. The ACA “exempts a great many employers from most of its coverage requirements.” (12)
Warning for the future:
“We now send these cases back to the lower courts, where the Commonwealth of Pennsylvania and the State of New Jersey are all but certain to pursue their argument that the current rule is flawed on yet another ground, namely, that it is arbitrary and capricious and thus violates the [Administrative Procedure Act].” (2)
Concurring Opinion: Justice Kagan, joined by Justice Breyer
Justices Kagan and Breyer agreed only with the judgment of the Court and not with the majority’s reasoning. They filed a separate opinion to articulate their reasoning for agreeing with the final outcome of upholding HHS’s rules.
HRSA has authority is issue exceptions:
“I would uphold HRSA’s statutory authority to exempt certain employers from the contraceptive-coverage mandate, but for different reasons than the Court gives.” (1)
“Over the course of two administrations, the Departments have shifted positions on many questions involving the Women’s Health Amendment and the ACA more broadly. But not on whether the Amendment gives HRSA the ability to create exemptions to the contraceptive-coverage mandate. . . While the exemption itself has expanded, the Departments’ reading of the statutory delegation—that the law gives HRSA discretion over the “who” question—has remained the same. I would defer to that longstanding and reasonable interpretation.” (3)
The lower courts should examine that process used in issuing the exemption:
“[T]hat does not mean the Departments should prevail when these cases return to the lower courts. The States challenged the exemptions not only as outside HRSA’s statutory authority, but also as ‘arbitrary [and] capricious.’”(3)
“An agency acting within its sphere of delegated authority can of course flunk the test of ‘reasoned decisionmaking.’ The agency does so when it has not given ‘a satisfactory explanation for its action’—when it has failed to draw a ‘rational connection’ between the problem it has identified and the solution it has chosen, or when its thought process reveals ‘a clear error of judgment.’” (4)
“As noted earlier, I would defer to the Departments’ view of the scope of Congress’s delegation. That means the Departments (assuming they act hand-in-hand with HRSA) have wide latitude over exemptions, so long as they satisfy the requirements of reasoned decisionmaking. But that ‘so long as’ is hardly nothing. Even in an area of broad statutory authority—maybe especially there—agencies must rationally account for their judgments.” (7)
Dissenting Opinion: Justice Ginsburg joined by Justice Sotomayor
Depriving women of contraception coverage:
“Destructive of the Women’s Health Amendment, this Court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets.” (2)
“Effective contraception, it bears particular emphasis, ‘improves health outcomes for women and [their] children,’ as ‘women with unintended pregnancies are more likely to receive delayed or no prenatal care’ than women with planned pregnancies.” (5)
“Despite Congress’ endeavor, in the Women’s Health Amendment to the ACA, to redress discrimination against women in the provision of healthcare, the exemption the Court today approves would leave many employed women just where they were before insurance issuers were obliged to cover preventive services for them, cost free.” (8)
“In this light, the Court has repeatedly assumed that any religious accommodation to the contraceptive-coverage requirement would preserve women’s continued access to seamless, no-cost contraceptive coverage.” (14)
“Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.” (1)
Religious exemptions have been wrongfully extended to for-profit companies:
“For years, religious organizations have challenged the self-certification accommodation as insufficiently protective of their religious rights. While I do not doubt the sincerity of these organizations’ opposition to that accommodation, I agree with Pennsylvania and New Jersey that the accommodation does not substantially burden objectors’ religious exercise.” (18)
“Under new rules drafted not by HRSA, but by the IRS, EBSA, and CMS, any ‘non-governmental employer’—even a publicly traded for-profit company—can avail itself of the religious exemption previously reserved for houses of worship.” (7)
“The blanket exemption for religious and moral objectors to contraception formulated by the IRS, EBSA, and CMS is inconsistent with the text of, and Congress’ intent for, both the ACA and RFRA. Neither law authorizes it.” (21)
ERLC interns Julia Stamper, Sloan Collier, Seth Billingsley, and Mary Beth Teague contributed to this article.