The Supreme Court has upheld the Trump administration’s exemptions to mandatory contraception coverage under Obamacare for employers with sincerely held objections. The ruling is welcome, particularly in its recognition that First Amendment religious liberty is not confined to identifiably religious organizations, such as churches, but to all Americans. Regrettably, however, the justices stopped short of a definitive ruling that would end the litigation, which the Little Sisters of the Poor have had to pursue for seven long years.
That explains the seemingly lopsided 7–2 decision in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania. In his opinion for the Court, Justice Clarence Thomas concluded that the Trump administration had the authority under the Affordable Care Act (ACA or Obamacare) to issue the exemptions. Justice Thomas rejected the objecting states’ claims that the exemptions were not permitted under the ACA; and that, even if they were permitted, the administration had failed to comply with technical notice-and-commentary requirements of the Administrative Procedure Act. (Interestingly, such technical APA flaws were Chief Justice John Roberts’s rationale for joining the Court’s four-justice left-wing bloc to invalidate the administration’s rescission of the Obama DACA decree — notwithstanding that the Obama administration had not complied with the APA in promulgating DACA.)
The Court’s ruling is fine as far as it goes. Nevertheless, Thomas reasoned that because the case could be decided based on the terms of the Obamacare statute itself, the Court need not reach the closely related question of whether the contraceptive mandate violated the Religious Freedom Restoration Act. In Burwell v. Hobby Lobby Stores (2014), the Court had held that the contraceptive mandate unduly burdened the free exercise rights of closely held corporations with sincerely held religious objections.
Clearly, the narrowness of the ruling is what drew the concurrence of two of the liberal justices, Elena Kagan and Stephen Breyer. In her concurrence (joined by Justice Breyer), Justice Kagan concedes that the ACA’s terms authorized the administration to exempt “certain employers” from contraceptive coverage. She contends, nevertheless, that the exemptions the Trump administration issued are unlikely to “survive administrative law’s demand for reasoned decisionmaking,” a question she encouraged the lower courts to explore.
It is certain, then, that the litigation will continue. The objecting states (Pennsylvania and New Jersey) will now claim that the exemptions should be invalidated as “arbitrary and capricious” under the APA. That inevitability prompted Justice Samuel Alito, joined by Justice Neil Gorsuch, to pen a concurrence that faults the Court for failing to decide the RFRA issue. Justice Alito forcefully argues that contraceptive mandate would unlawfully burden the free exercise rights of employers, such as the Little Sisters, who harbor sincerely held religious objections.
The RFRA is triggered when the government burdens a person’s right to free exercise of religion, even by the enactment of a neutral law of general applicability (i.e., a law that applies to everyone and is not overtly hostile to religion). Substantially burdening religion is prohibited unless the government can show that the law in question (a) furthers a compelling government interest (b) by employing the least restrictive means of doing so.
Alito reasons that the contraceptive mandate obviously imposes a substantial burden on employers who hold sincere religious objections. The mandate is not in furtherance of a compelling government interest. Indeed, Congress did not even prescribe such a mandate in Obamacare – it was subsequently imposed by regulation. Moreover, Congress has never indicated that there is a compelling government interest in providing all women with access to all FDA-approved contraceptives without cost-sharing. To the contrary, ACA regulations still leave gaps in contraceptive coverage, and there are many important medical services that are not guaranteed (e.g., as Alito observes, “the ACA does not require that a plan cover dental services). Finally, even if it were conceded for argument’s sake that the mandate served a compelling government interest, Alito (relying on Hobby Lobby) pointed out that the government has other means of accomplishing it without imposing a substantial burden on religion. For example, the government itself could assume the cost of providing contraceptives to women unable to obtain them under their health-insurance policies.
Justice Ruth Bader Ginsburg dissented, joined by Justice Sonia Sotomayor. Justice Ginsburg posited that “in its zeal to secure religious rights to the nth degree,” the Court was “cast[ing] totally aside countervailing rights and interests.” That is sheer hyperbole. In reality, the Court could have secured the religious rights in question, but elected not to; the ruling is merely a temporary reprieve. Furthermore, while religious rights are actually in the Constitution, our fundamental law does not undertake to, as Ginsburg puts it, “afford gainfully employed women comprehensive, seamless, no-cost insurance coverage” for contraceptives. It is baffling that she could see the latter “right” as weighty enough to be “countervailing” in this context, particularly when — contrary to her breezy assertion — Congress did not deem it worthy of being written into the ACA.
I suspect Chief Justice Roberts (if not others in the majority) would not agree to reach the RFRA issue if the case could be decided without doing so. Consequently, the Court gets a what looks like a collegial, nonpartisan 7–2 ruling, rather than a 5–4 cliffhanger that the Democrat-media complex would have portrayed as a triumph of rightwing religious fanaticism over women’s health. Meanwhile, the Little Sisters of the Poor can look forward to more years of legal combat to vindicate rights that area supposed to be guaranteed.
In another case bearing on religious liberty, the Court also ruled today that the First Amendment bars courts from entertaining employment discrimination suits against religious schools if brought by a teacher responsible for the religious education and formation of students. Writing for a 7–2 majority in Our Lady of Guadalupe v. Morrissey-Berru, Justice Alito reasoned that that responsibility goes to the core mission of most private religious schools; therefore, religious liberty requires leaving employment decisions touching on that mission to the schools. Once again, Justices Ginsburg and Sotomayor dissented (this time, the latter writing, joined by the former).
The Court announced that tomorrow morning it would issue the remaining decisions for this term. These will presumably include efforts by congressional committees and a New York state grand jury (through the Manhattan district attorney) to obtain President Trump’s financial records and tax information.