Bench Memos

Law & the Courts

Justice Alito’s Noteworthy RFRA Concurrence in Little Sisters Case

In his concurring opinion (joined by Justice Gorsuch) in Little Sisters of the Poor v. Pennsylvania, Justice Alito laments the “Court’s desire to decide no more than is strictly necessary”:

We now send these cases back to the lower courts, where the Commonwealth of Pennsylvania and the State of New Jersey are all but certain to pursue their argument that the current rule is flawed on yet another ground, namely, that it is arbitrary and capricious and thus violates the APA. This will prolong the legal battle in which the Little Sisters have now been engaged for seven years—even though during all this time no employee of the Little Sisters has come forward with an objection to the Little Sisters’ conduct.

Alito would instead review and reverse the Third Circuit’s decision that the federal Religious Freedom Restoration Act does not compel the religious exemption to the contraceptive mandate, and he would thus “bring the Little Sisters’ legal odyssey to an end.”

Here is a summary of Alito’s analysis (pp. 5-16):

The Departments responsible for administering the contraceptive mandate are obligated to do so in a manner that complies with RFRA. Applying RFRA to the mandate presents three questions:

(1) Would the mandate substantially burden the exercise of religion of an employer who has a religious objection to the mandate? Under the Court’s Hobby Lobby decision, the answer is clearly yes. Non-compliance would have substantial adverse practical consequences, and compliance would cause the employer to violate its religious beliefs, as it sincerely understands them. (Pp. 6-10.)

(2) Does the mandate serve a “compelling interest”? The government’s concession that it lacks a compelling interest in ensuring that all women have access to all FDA-approved contraceptives without cost sharing is correct. Congress itself did not treat the provision of free contraceptives to all women as a compelling interest. First, the ACA does not provide contraceptive coverage to women who do not work outside the home. Second, Congress didn’t mandate such coverage for all working women. (The mandate isn’t in the ACA; it’s a regulatory implementation of a preventive-services provision in the ACA.) Third, the ACA exempts lots of employers from its coverage requirements. Fourth, the majority’s recognition that the ACA authorized the creation of exemptions that go beyond anything required by the Constitution provides further evidence that Congress did not regard the provision of free contraceptives as a compelling interest. (Pp. 10-12.)

Further, the regulatory exemptions (by both the Obama and the Trump administrations) undermine any claim that the agencies themselves viewed the provision of contraceptive coverage as sufficiently compelling. (Pp. 12-13.)

Justice Ginsburg’s claim of a compelling interest in providing “seamless” cost-free coverage—coverage under the insurance plan furnished by a woman’s employer—is even weaker:

Apparently, it would not be enough if the Government sent her a special card that could be presented at a pharmacy to fill a prescription for contraceptives without any out-of-pocket expense. Nor would it be enough if she were informed that she could obtain free contraceptives by going to a conveniently located government clinic. [Pp. 13.]

(3) If a compelling interest existed, is the mandate the least restrictive means of serving that interest? No. As the Court said in Hobby Lobby, the government could provide contraceptives directly. (Pp. 14-15.)

The Departments had discretion in crafting the best way to remedy the RFRA violation. It isn’t clear that any narrower exemption would have been sufficient. Any employer who was satisfied with the prior accommodation may continue to operate under that regime and presumably would desire to do so. Nothing in RFRA requires that a violation be remedied by the narrowest possible corrective. (Pp. 16-18.)

Contrary to what Justice Ginsburg’s dissent argues, the rule imposes no burdens on the employees of exempt entities:

A woman who does not have the benefit of contraceptive coverage under her employer’s plan is not the victim of a burden imposed by the rule or her employer. She is simply not the beneficiary of something that federal law does not provide. She is in the same position as a woman who does not work outside the home or a woman whose health insurance is provided by a grandfathered plan that does not pay for contraceptives or a woman who works for a small business that may not provide any health insurance at all. [Pp. 18-19.]


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