Baptist News Global
Sections
  • News
  • Analysis
  • Opinion
  • Curated
  • Storytelling
    • Faith & Justice >
      • Charleston: Metanoia with Bill Stanfield
      • Charlotte: QC Family Tree with Greg and Helms Jarrell
      • Little Rock: Judge Wendell Griffen
      • North Carolina: Conetoe
    • Welcoming the Stranger >
      • Lost Boys of Sudan: St. John’s Baptist Charlotte
      • Awakening to Immigrant Justice: Myers Park Baptist Church
      • Hospitality on the corner: Gaston Christian Center
    • Signature Ministries >
      • Jake Hall: Gospel Gothic, Music and Radio
    • Singing Our Faith >
      • Hymns for a Lifetime: Ken Wilson and Knollwood Baptist Church
      • Norfolk Street Choir
    • Resilient Rural America >
      • Alabama: Perry County
      • Texas: Hidalgo County
      • Arkansas Delta
      • Southeast Kentucky
  • More
    • Contact
    • About
    • Donate
    • Planned Giving
    • Letters to the Editor
    • Advertising
    • Ministry Jobs and More
    • Transitions
    • Subscribe
    • Submissions and Permissions
Donate Subscribe
Search Search this site

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

AnalysisRobert W. Coleman  |  July 16, 2020

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.

Robert W. Coleman

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.”

President Donald Trump greets the Little Sisters of the Poor before signing an executive order on Promoting Free Speech and Religious Liberty a during a National Day of Prayer event in the Rose Garden of the White House on May 4, 2017. (Photo by Olivier Douliery/ Abaca(Sipa via AP Images)

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.

Tags:RFRASupreme CourtContraceptionLittle Sisters of the PoorACARobert W. Coleman
More by
Robert W. Coleman
  • Get BNG headlines in your inbox

  • BNG dinner will bring together Anthea Butler and Beth Allison Barr for a conversation on race and gender

    Two of the most prominent voices speaking to the American church about race and gender will appear together at the Baptist News Global dinner during the Cooperative Baptist Fellowship’s General Assembly in Dallas this June. Get your tickets now!

  • Featured

    • White supremacy and firearm idolatry: America’s Baal

      Opinion

    • SBC establishes hotline to receive reports of sexual abuse in churches

      News

    • After the Guidepost report: Dwelling with evil while living into hope

      Opinion

    • SBC presidential candidate says Executive Committee’s waiver of attorney-client privilege was ‘not wise’

      News


    Curated

    • Buffalo and Uvalde both appear to have involved the AR-15, the rifle revered by the Christian right

      Buffalo and Uvalde both appear to have involved the AR-15, the rifle revered by the Christian right

      May 27, 2022
    • Ukrainians Count The Days As They Pray

      Ukrainians Count The Days As They Pray

      May 27, 2022
    • Texans plan interfaith protest at Friday’s NRA convention in Houston

      Texans plan interfaith protest at Friday’s NRA convention in Houston

      May 27, 2022
    • Buffalo’s Black Christians Grieve the ‘Evil Among Us’

      Buffalo’s Black Christians Grieve the ‘Evil Among Us’

      May 27, 2022
    Read Next:

    Mass murder and the soundtrack of our lives

    OpinionJustin Cox

    More Articles

    • All
    • News
    • Opinion
    • Curated
    • Former SBC President Johnny Hunt admits improper conduct but denies abuse claims

      NewsDavid Bumgardner

    • America, blood is on your hands

      OpinionJamar A. Boyd II

    • Guns, the elders and the children

      OpinionSusan K. Smith

    • They were attending a conference on Scripture and violence when the Uvalde massacre happened

      NewsJeff Brumley

    • On another classroom full of murdered children

      OpinionDavid Gushee, Senior Columnist

    • Now is the time when we need to hear white evangelical leaders refute white supremacy

      OpinionJoel Bowman Sr.

    • Does the SBC have enough sackcloth?

      OpinionTerry Austin

    • SBC Executive Committee releases previously secret list of convicted and credibly accused church sexual abusers

      NewsDavid Bumgardner

    • Calvinist Baptist pastor says Guidepost recommendations in sexual abuse report are ‘harmful’ and threaten ‘the sufficiency of Scripture’

      NewsDavid Bumgardner

    • Title 42 is expelling the good people, not the bad people, border advocate explains

      NewsJeff Brumley

    • What happens when the good news of therapy and the good news of Scripture conflict?

      OpinionRebecca Hewitt-Newson

    • Sick of war, church leaders in South Sudan recommit to finding peace

      NewsAnthony Akaeze

    • White supremacy and firearm idolatry: America’s Baal

      OpinionBill Leonard, Senior Columnist

    • The European option: Why we need a third way on abortion

      AnalysisAlan Bean

    • After the Guidepost report: Dwelling with evil while living into hope

      OpinionKathy Manis Findley

    • SBC establishes hotline to receive reports of sexual abuse in churches

      NewsMark Wingfield

    • Becoming UNSTOPPABLE Christians

      Paid Promoted Content

    • SBC presidential candidate says Executive Committee’s waiver of attorney-client privilege was ‘not wise’

      NewsDavid Bumgardner

    • Rights, responsibilities and the two-fold commandment of love: A reflection on gun violence in America

      OpinionGreg Garrett, Senior Columnist

    • Mass murder and the soundtrack of our lives

      OpinionJustin Cox

    • Letter to the Editor: Where are the repentant SBC leaders?

      OpinionLetters to the Editor

    • What I learned listening to others who have left the faith

      AnalysisRick Pidcock

    • United Methodist model could help Southern Baptists recover from sexual abuse scandal

      AnalysisCynthia Astle

    • Who is Augie Boto, the central figure in the SBC sexual abuse cover up?

      NewsMark Wingfield

    • This is more than just sin

      OpinionMeredith Stone

    • Former SBC President Johnny Hunt admits improper conduct but denies abuse claims

      NewsDavid Bumgardner

    • They were attending a conference on Scripture and violence when the Uvalde massacre happened

      NewsJeff Brumley

    • SBC Executive Committee releases previously secret list of convicted and credibly accused church sexual abusers

      NewsDavid Bumgardner

    • Calvinist Baptist pastor says Guidepost recommendations in sexual abuse report are ‘harmful’ and threaten ‘the sufficiency of Scripture’

      NewsDavid Bumgardner

    • Title 42 is expelling the good people, not the bad people, border advocate explains

      NewsJeff Brumley

    • Sick of war, church leaders in South Sudan recommit to finding peace

      NewsAnthony Akaeze

    • SBC establishes hotline to receive reports of sexual abuse in churches

      NewsMark Wingfield

    • SBC presidential candidate says Executive Committee’s waiver of attorney-client privilege was ‘not wise’

      NewsDavid Bumgardner

    • Who is Augie Boto, the central figure in the SBC sexual abuse cover up?

      NewsMark Wingfield

    • SBC plans to release list of known sexual abusers in churches, refutes its own former general counsel

      NewsDavid Bumgardner, Jeff Brumley, Mark Wingfield and Maina Mwaura

    • On three-month anniversary of Russian invasion, Ukrainian Baptists and neighbors keep helping everyone they can

      NewsJeff Brumley

    • While SBC weeps over sexual abuse allegations, the TheoBros take on Beth Allison Barr one more time

      NewsMark Wingfield

    • SBC’s former law firm sharply disagrees with Sexual Abuse Task Force report

      NewsMark Wingfield

    • Ministry jobs and more

      NewsBarbara Francis

    • Hearing from victims’ families changed the death penalty debate in Connecticut

      NewsJeff Brumley

    • What’s next for recommendations and reforms in SBC sexual abuse study?

      NewsMark Wingfield

    • Guidepost report documents pattern of ignoring, denying and deflecting on sexual abuse claims in SBC

      NewsMark Wingfield

    • Author considers how to mourn what’s lost when the faithful leave church

      NewsJeff Brumley

    • As joblessness rocks South Africa, fake pastor diplomas are in demand

      NewsRay Mwareya and Nyasha Bhobo

    • Why breaking up is so hard to do for United Methodists: Connectionalism

      NewsCynthia Astle

    • Oklahoma legislators say life begins at ‘fertilization’

      NewsMark Wingfield

    • Baptists in Ukraine continue their humanitarian work amid devastation

      NewsJeff Brumley

    • Louisville police training quoted Bible verse to say officers are God’s agents of wrath

      NewsMark Wingfield

    • Transitions for the week of 5-20-22

      NewsBarbara Francis

    • ‘It’s still the economy, stupid’

      NewsMark Wingfield

    • America, blood is on your hands

      OpinionJamar A. Boyd II

    • Guns, the elders and the children

      OpinionSusan K. Smith

    • On another classroom full of murdered children

      OpinionDavid Gushee, Senior Columnist

    • Now is the time when we need to hear white evangelical leaders refute white supremacy

      OpinionJoel Bowman Sr.

    • Does the SBC have enough sackcloth?

      OpinionTerry Austin

    • What happens when the good news of therapy and the good news of Scripture conflict?

      OpinionRebecca Hewitt-Newson

    • White supremacy and firearm idolatry: America’s Baal

      OpinionBill Leonard, Senior Columnist

    • After the Guidepost report: Dwelling with evil while living into hope

      OpinionKathy Manis Findley

    • Rights, responsibilities and the two-fold commandment of love: A reflection on gun violence in America

      OpinionGreg Garrett, Senior Columnist

    • Mass murder and the soundtrack of our lives

      OpinionJustin Cox

    • Letter to the Editor: Where are the repentant SBC leaders?

      OpinionLetters to the Editor

    • This is more than just sin

      OpinionMeredith Stone

    • Remember the women: The Southern Baptist cover up of sexual abuse

      OpinionPam Durso

    • Don’t overlook the depth of the disease in the SBC

      OpinionPaula Garrett

    • Tear down the SBC Executive Committee and replace it

      OpinionLayne Wallace

    • It’s time to stop giving Christianity a pass on white supremacy and violence

      OpinionRobert P. Jones

    • SBC report shows how five words turn abuse victim from ‘survivor’ to ‘whore’

      OpinionMarv Knox

    • Former foster youth need to know they are not abandoned

      OpinionAlbert L. Reyes

    • What I learned about Polish hospitality toward Ukrainians: There but for the grace of God

      OpinionPatrick Wilson

    • Stop using Jesus to disguise your predatory patriarchy

      OpinionJessica Abell and Stephany Rose Spaulding

    • Sadly, I agree that a complementarian seminary shouldn’t offer women degrees in pastoral theology

      OpinionAnna Sieges

    • Intolerable cruelty is killing us

      OpinionKris Aaron

    • Another racist mass shooting and our failure to tend Jesus’ sheep

      OpinionEmily Holladay

    • Learning about change from Henry Ford

      OpinionBob Newell

    • Hymn stories: ‘Christ is alive! Let Christians sing’

      OpinionBeverly A. Howard

    • Buffalo and Uvalde both appear to have involved the AR-15, the rifle revered by the Christian right

      Curated

      Exclude from home pageBNG staff

    • Ukrainians Count The Days As They Pray

      Curated

      Exclude from home pageBNG staff

    • Texans plan interfaith protest at Friday’s NRA convention in Houston

      Curated

      Exclude from home pageBNG staff

    • Buffalo’s Black Christians Grieve the ‘Evil Among Us’

      Curated

      Exclude from home pageBNG staff

    • Senate GOP blocks domestic terrorism bill, gun policy debate

      Curated

      Exclude from home pageBNG staff

    • Supreme Court declines to hear 2 different attempts to stop longtime Ann Arbor synagogue protesters

      Curated

      Exclude from home pageBNG staff

    • Dispute over mosque becomes religious flashpoint in India

      Curated

      Exclude from home pageBNG staff

    • Texas shooting live updates: Officials reveal more details about how the Uvalde school shooting unfolded

      Curated

      Exclude from home pageBNG staff

    • ‘He’s Just A Salesman’: Former Morningside Band Director Talks Bakker’s Ministry Tactics

      Curated

      Exclude from home pageBNG staff

    • After 2,000 UK Church Buildings Close, New Church Plants Get Creative

      Curated

      Exclude from home pageBNG staff

    • Many Jewish World War II Soldiers Had Christian Burials. That’s Changing.

      Curated

      Exclude from home pageBNG staff

    • House Speaker Nancy Pelosi Questions Archbishop’s Decision Regarding Communion Ban

      Curated

      Exclude from home pageBNG staff

    • Burka Enforcement and Burka Bans: Where Extremist Policies Meet

      Curated

      Exclude from home pageBNG staff

    • Climate Change Indicators Reach Record Levels

      Curated

      Exclude from home pageBNG staff

    • The Catholic Church’s views on exorcism have changed – a religious studies scholar explains why

      Curated

      Exclude from home pageBNG staff

    • Indiana pastor admits ‘adultery’; woman says she was a teen

      Curated

      Exclude from home pageBNG staff

    • Church of Scotland Approves Same-Sex Marriage

      Curated

      Exclude from home pageBob Allen and Jeff Brumley

    • Banned from Communion in San Francisco, Pelosi receives Eucharist in Washington

      Curated

      Exclude from home pageBNG staff

    • Senior Israeli lawmaker warns of “religious war” over Jerusalem moves

      Curated

      Exclude from home pageBNG staff

    • Minnesota GOP apologizes for Soros puppetmaster video

      Curated

      Exclude from home pageBNG staff

    • If the media are reluctant to properly label the GOP’s racist, Christian nationalist ideologies, we’ll have trouble hanging on to democracy

      Curated

      Exclude from home pageBNG staff

    • Pope voices hope church in China can operate in freedom

      Curated

      Exclude from home pageBNG staff

    • Telehealth abortion demand is soaring. But access may come down to where you live

      Curated

      Exclude from home pageBNG staff

    • With AIPAC funding primary campaigns, young Jewish progressives move further left

      Curated

      Exclude from home pageBNG staff

    • Welsh First Minister ‘regrets’ that Franklin Graham is coming to Wales

      Curated

      Exclude from home pageBNG staff

    Conversations that Matter.

    © 2022 Baptist News Global. All rights reserved.

    Want to share a story? We hope you will! Read our republishing, terms of use and privacy policies here.

    • Facebook
    • Twitter
    • Instagram
    • LinkedIn
    • RSS