The Little Sisters of the Poor didn’t get everything they wanted.
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.
