When the Little Sisters of the Poor and allied groups won their most recent victory at the Supreme Court this summer, Joe Biden said he wanted not just to undo that decision but to go back to the pre-Hobby Lobby version of the Obama administration’s contraceptive mandate. He never explained how he could attain this goal, and the election makes it a longshot.
In Hobby Lobby, all five of the Republican appointees then on the Supreme Court ruled that the Religious Freedom Restoration Act requires that companies with a religious objection to covering some types of contraception (which they, with some justification, consider abortifacient) be allowed not to cover them. How could the Left undo this decision?
First, Congress could in theory change the law to eliminate the statutory exemption. But now — even in the unlikely event Democrats get a 51–50 majority in the Senate in January and hold everyone on legislation to this effect — they can’t break a filibuster. (I’d place the probability a 51–50 Democratic Senate gets rid of the filibuster at close to zero.) And even if they somehow overcame all these hurdles, the Supreme Court might find that the Constitution requires exemptions anyway.
Second, the Court could change its mind about what RFRA requires. But there’s a 6–3 majority of Republican appointees and all of them would be likely to stick with the Hobby Lobby ruling. Democrats — see above — don’t have the votes to pack the Court.
What Biden can do is subject the nuns to more litigation. The Supreme Court’s decision this summer upheld a Trump administration policy of exempting them from any version of the mandate, but the likely incoming Biden administration will be inclined to reverse Trump’s policy. That would tee up a case for the Supreme Court to determine whether the nuns are entitled by either statute or the Constitution to an exemption from the mandate. One way or another, they’d be likely, finally, to prevail.