How the nuns won at the Supreme Court and why it matters

Most people probably had not heard of The Little Sisters of the Poor Saints Peter and Paul Home before it joined the fight with the federal government over required coverage of contraception in employer-provided medical insurance plans. That was the heart of a closely watched decision from the United States Supreme Court released July 8, the final day of the current term of the court.

Many Christians assumed this decision could be one of the most important in recent times in affirming the First Amendment right of free exercise of religion and in causing further damage to one of the signature rights established under the Patient Protection and Affordable Care Act of 2010, also known as the ACA. The decision, however, is more proof that T.S. Elliott was right about how things may end — not with a bang, but a whimper.

A careful reading of the court’s opinion finds this is not a First Amendment case at all. It is, instead, a case about how government agencies may interpret legislation and what accommodations they must make for people with sincere religious beliefs because of the 1993 Religious Freedom Restoration Act.

The Little Sisters of the Poor is “an international congregation of Roman Catholic women” who have operated homes for the elderly poor in the United States since 1868. Their mission has nothing to do with procreation or reproductive medical services. They are, however, devout Catholics and thus believe no person should take any action to avoid reproduction through medical means; to do so, they believe, is immoral.

Because they are employers of some women of child-bearing age, they would have been required to provide contraception coverage as part of their medical insurance benefits. The Little Sisters refused to do this, citing strict Catholic doctrine against birth control.

Surprisingly, the Supreme Court decision in favor of the Little Sisters is a 7-2 decision by the court, not a 5-4 ruling that so often emerges on controversial social issues.

Justice Clarence Thomas wrote the opinion of the court, which was supported by the chief justice and four of the nine justices. Justice Alito filed a concurring opinion, joined by Justice Gorsuch. Justice Kagan filed an opinion concurring in the judgment of the court, in which Justice Breyer joined. Justice Ginsburg wrote a dissenting opinion, in which Justice Sotomayor joined. And that is not the most complicated part to explain.

The 26-page majority opinion, together with Alito’s concurrence, highlights one important conclusion about the Little Sisters case that should change the perception of the decision. As Thomas writes: “No party has pressed a constitutional challenge to the breadth of the delegation involved here. … The only question we face today is what the plain language of the statute authorizes.” And Alito concurs: “Before this Court, the States do not argue — and there is no basis for an argument — that the new rule violates that (Establishment) Clause.”

“The Little Sisters decision is a purely administrative law decision.”

The Little Sisters decision is a purely administrative law decision, ironically relying upon the language of ACA itself, the Religious Freedom Restoration Act of 1993, and typical administrative law reasoning. As Thomas recites, the ACA did not include any mention of required contraception coverage. Rather, the ACA only states that group health plans for employees “must provide women with preventive care and screenings … as provided for” in guidelines to be promulgated by the Health Resources and Services Administration, a division of the Department of Health and Human Services. Those guidelines, not the law itself, set forth the mandate that all plans must cover all FDA-approved contraceptive methods.

When HHS issued the guidelines, it authorized a plan to exempt religious employers, such as churches, from being required to provide contraception coverage. Later this was expanded to allow other qualifying religious organizations to opt out of this coverage by self-certifying to their insurer that they met certain religious criteria. The Little Sisters objected to this modification because they felt that self-certifying meant they would be complicit in someone getting access to contraception through their actions.

The attacks on this attempt to work around the problem created by insurance policy rules all were based upon alleged violations of RFRA, not the First Amendment. RFRA at the time of its passage was hailed as a defining beacon of interpretation of religious liberty. The Baptist Joint Committee for Religious Liberty helped shepherd its passage.

In attempting to satisfy the Little Sisters and others after the Hobby Lobby decision, governmental agencies broadened the attempted accommodations to include more organizations under the church exemption and added a “moral exemption” for employers, including public companies, objecting to providing some or all of the contested contraception coverage. It is this rule that Justice Thomas affirms as valid under the ACA and the Administrative Procedures Act against the attack by two states.

In rejecting the two states’ arguments, Thomas and the court find that the ACA properly delegates the right to issue guidelines for both the mandate and the religious exceptions, even in its revised broadened formulation. Once the authority for the guidelines was established, the court quickly dismissed the procedural attacks. These rulings are substantially the same as any other decision about any administratively adopted implementation of new legislation (although it had taken nearly eight years to complete the adoption of the final version of the rules in their broadened form) decided without regard to the Constitution.

“The Little Sisters’ decision is important for other reasons.”

Yet the Little Sisters’ decision is important for other reasons — for what it does do and doesn’t do. A careful reading of Thomas’ opinion shows a concern with making sure the Little Sisters’ rulings cannot be used in any way to attack the Hobby Lobby decision, which was widely praised by conservative Christian groups and eschewed by traditional interpreters of church-state separation. Thomas seems to go out of his way not to decide whether RFRA independently compelled the accommodation set forth in the government’s final rule on contraception coverage. In the multiple places Thomas invokes Hobby Lobby to support his ruling, he seems to show a concern that looking at RFRA might reopen an examination of the rationale used in Hobby Lobby. It seems doubly ironic that he uses his conclusion that the language of the ACA provides a basis for the exemptions in the rules to support “not deciding whether RFRA independently compelled the Department’s solution.”

There may be another more buried purpose for the details of the Thomas opinion, however. In Footnote 8, Thomas provides a suggested solution to the entire issue of the contraception controversy to date, but which would surely bring a firestorm of objections from more liberal proponents of the mandate. Thomas states that the government, relying upon the administrative basis for prior alterations to the ACA guidelines, could “remove the contraception coverage from the next iteration of its guidelines” and “arguably nullify the contraception mandate altogether without proceeding through notice and comment.”

The court sent the cases back to the lower courts, to be re-evaluated in light of the Supreme Court opinions. That is where the concurring opinions become important, as possible forecasts of what is yet to come.

Alito’s concurrence and Ginsberg’s dissent highlight one possible future issue for the courts below — whether the version of the contraception coverage rule approved by the majority of the court was required by RFRA. Alito claims strongly that RFRA “compels an exception for the Little Sisters and any other employer with a similar objection to what has been called the accommodation to the contraception mandate.” In doing so, he points out that nothing in the ACA “abrogates RFRA,” an alternative way of avoiding RFRA in new legislation.

“The government failed to show that it has a compelling interest in insuring that ‘all women have access to all FDA-approved contraception,’ in part because the ACA does not come close to providing ‘all women’ this coverage.”

Most of Alito’s opinion is a detailed analysis of the threefold test for compliance with RFRA. He states that Hobby Lobby already held that the mandate fails test one because it found that the mandate is a substantial burden on any employer like the Little Sisters, who have a sincere religious objection to the use of some or all contraception. He would find that the government failed to show that it has a compelling interest in insuring that “all women have access to all FDA-approved contraception,” in part because the ACA does not come close to providing “all women” this coverage.

He again looks to Hobby Lobby to conclude that the self-certifying accommodation was not the “least-restrictive means” to accomplish the ACA purpose. Once he concludes more was required, Alito examines the final rule and concludes that it should survive as the majority held because governmental departments “were required by RFRA to create the religious exception (or something very close to it).” There is no doubt that, since the majority did not follow his wishes, Alito wants the lower courts to follow his concurrence and rule that the exemption is required by RFRA.

Meanwhile, the Kagan concurrence provides a succinct summary of the differences between the majority and the dissent: “Both the majority and the dissent agree that HRSA’s guidelines can differentiate among preventive services, mandating coverage of some but not others. The opinions disagree about whether those guidelines can also differentiate among health plans, exempting some but not others from the contraception-coverage requirement. On that question, all the two opinions have in common is equal certainty that they are right.”

Kagan concurs in the judgment of the majority by relying upon the earlier Chevron decision, which held that when a court is required to rule upon the scope of an agency’s statutory authority under an ambiguous statute, it should “accede to a reasonable interpretation by the implementing agency.” She believes the government has maintained its right to create exceptions to the contraception mandate for some employers from the beginning even though the precise rule has changed several times. Her conclusion thus was to “defer to that longstanding and reasonable interpretation.”

Kagan points out that the courts below invalidated the exemptions because they found them to be outside the statutory authority of government agencies, which the court’s opinion reverses. The lower courts, however, did not rule on the two states’ argument that the exemption was also “arbitrary and capricious.” She concludes that the issue “is now ready for resolution, unaffected by today’s decision.” That is an issue to watch in the next round of court action.

The remainder of Kagan’s concurrence is a sharp, intellectual description of why the latest exemption may not withstand an analysis of whether its adoption was “arbitrary and capricious.” Parties and pundits wanting to look to the future should read her opinion carefully for its predictions of what the courts below could yet do to the current administration’s attempts to resolve and narrow the ACA contraception coverage.

That future might also make Thomas’ gratuitous suggestion in Footnote 8 of the majority opinion reappear as well — if anyone in the right government agency who writes the next set of guidelines is listening.

Robert W. Coleman is an attorney in Dallas and a longtime commentator on religious liberty issues. His passion for First Amendment issues was sparked, in part, by his lifelong friendship with the late Phil Strickland, who in his lifetime was a nationally known advocate for religious liberty causes.