Supreme Court Birth Control Case Will Be Back

(Bloomberg Opinion) -- The Little Sisters of the Poor, an order of Catholic nuns, have been fighting the contraceptive mandate of the Affordable Care Act since 2013. Today the Supreme Court gave them a victory — but not the final victory they sought, namely that they’re automatically entitled to an exemption from the ACA under the Religious Freedom Restoration Act. Nonetheless, this ruling — along with other key decisions this term — demonstrates that the conservative majority of the court has definitively entered the era of religious exemptions.

If the idea of the Little Sisters before the Supreme Court rings a bell, congratulations on the acuity of your memory. After President Barack Obama signed the ACA, his Department of Health and Human Services gave an exemption to the contraceptive mandate to certain religious organizations like the Little Sisters, while still ensuring contraceptive care would reach their employees.

The way the exemptions worked was essentially that an organization seeking not to pay for its employees’ contraceptive care would submit a certificate to HHS explaining that it was a nonprofit religious organization with conscientious objection to contraception. The religious entity would then provide a copy of the certificate to its health insurer — which would then itself pay for the contraceptive care, not charging the religious employer.

The Little Sisters objected that even this process violated their religious liberty under RFRA. The case went all the way to the Supreme Court, where the untimely death of Justice Antonin Scalia in February 2016 robbed them of what would almost certainly have been a win. Instead, in May of 2016, the justices (who presumably were deadlocked 4-4) tried ham-fistedly to order the Obama administration and the Little Sisters to work out a solution. Neither side was prepared to compromise in a way that would satisfy the other.

The election of President Donald Trump led to staff changes at HHS, and in 2017 the department set new rules favorable to the Little Sisters. Under these rules, religious organizations like the Little Sisters are treated like houses of worship, with the effect that their health care providers don’t have to pay for contraceptive care for their employees at all.

This time the primary legal challenge came from two states, New Jersey and Pennsylvania, which argued that the new rules fell outside the scope of the department’s authority under the ACA and had not been adopted using the appropriate procedures. For their part, the Little Sisters asked the lower courts and the Supreme Court to hold that RFRA required the more aggressive exemption system.

In today’s decision, Justice Clarence Thomas and the court’s other four conservatives held that HHS had not gone beyond its authority in creating its new form of exemption for the Little Sisters. But the majority opinion did not decide whether RFRA requires the exemptions — the issue that had brought the Little Sisters to the court in 2016. That means the case will go back to the lower courts, where New Jersey and Pennsylvania could force the issue, asking the lower court to rule that the HHS rules are unlawful for a different reason, namely that they are not required by RFRA as the Trump administration insisted.

In a separate concurrence, Justice Samuel Alito, who practically owns the law of religious exemptions by virtue of the number of opinions he has written in the area, laid out his view that RFRA would be violated without the Trump exemption for Little Sisters. He was joined by Justice Neil Gorsuch, who is the most activist conservative on the court today, and apparently had no interest in the majority’s more cautious approach.

Justice Ruth Bader Ginsburg wrote a dissent arguing the opposite position: that the Trump exemption is not mandated by RFRA, essentially because it benefits “religious adherents at the expense of third parties,” namely the employees who would lose contraceptive care in contradiction to the core mission of the ACA. Justice Sonia Sotomayor joined Ginsburg’s dissent.

Justice Elena Kagan, joined by Justice Stephen Breyer, took a compromise middle ground. Kagan said the case should have been sent back to the lower courts under the so-called Chevron doctrine, which says that when a law directed at an executive branch agency is ambiguous, the courts should defer to the agency’s reasonable interpretation of the law. Then Kagan added that, similar to Ginsburg, she thought the lower courts should hold that the Trump exemption was not required by RFRA.

The upshot is that the conservatives did not give the Little Sisters everything they wanted. And no matter what happens in the November election, the issue will probably come back to the Supreme Court again.

If Trump is reelected, the liberal states will presumably assert that the Trump exemption is not required by RFRA and is therefore unlawful. Then the swing vote, Chief Justice John Roberts, will have to decide the issue.

If Joe Biden is elected, there will be major pressure on him to revoke the Trump exemption. Then the Little Sisters would challenge that revocation and argue that RFRA demands they be treated like a church. Given that the Obama administration could not reach a compromise, it seems unlikely that a Biden administration would.

Regardless, religious exemptions will continue to be a bone of contention between religious conservatives and liberals. So far, the Roberts court has been consistently on the side of exemptions — a trend confirmed in this second round of the Little Sisters case, and likely in a third round to come.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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