During the 2016 presidential campaign, candidate Donald Trump pledged to end government abuse of the so-called contraception mandate. Health and Human Services (HHS) bureaucrats had been using this bizarre interpretation of Obamacare’s preventative care provision as a pretext for trampling on the conscience rights of organizations whose principals had religious or moral objections to paying for certain types of birth control. In October 2017, President Trump made good on his campaign promise by instructing HHS to issue a new rule dramatically expanding the mandate’s conscience exemption. Wednesday, in a 7-2 ruling, the Supreme Court upheld the exemption in Little Sisters of the Poor Saints Peter and Paul v. Pennsylvania.
On behalf of the majority, Justice Clarence Thomas wrote, “For over 150 years, the Little Sisters have engaged in faithful service and sacrifice, motivated by a religious calling to surrender all for the sake of their brother.”
This is the third time the Little Sisters have appealed to SCOTUS pursuant to the contraception mandate. In January 2014, the Court protected them from ruinous federal fines. In May 2016, the justices unanimously overturned rulings by lower court judges who had accepted the preposterous Obama administration claim that it couldn’t meet the goals of providing free preventative care services to women without forcing the Little Sisters to violate their religious beliefs. Then, after the Trump administration promulgated its new rule in 2017, the Commonwealth of Pennsylvania sued them, and the end result of this ill-conceived lawsuit was today’s ruling. On behalf of the majority, Justice Clarence Thomas wrote,
For over 150 years, the Little Sisters have engaged in faithful service and sacrifice, motivated by a religious calling to surrender all for the sake of their brother.… But for the past seven years, they — like many other religious objectors who have participated in the litigation and rulemakings leading up to today’s decision — have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs.
For anyone unfamiliar with these nuns who keep handing government attorneys (both federal and state) their keisters, here’s a little history: The Little Sisters of the Poor is an international Roman Catholic Congregation founded in 1839. They operate nursing homes for the poor in 31 countries, including 30 in the United States. Their mission is described on their website as follows: “Our MISSION is to offer the neediest elderly of every race and religion a home where they will be welcomed as Christ, cared for as family and accompanied with dignity until God calls them to himself.” As Catholics, they follow Church doctrine and thus cannot in good conscience include coverage for contraception in their employee health plans.
In addition to Justice Thomas, the majority included Chief Justice John Roberts and associate justices Samuel Alito, Stephen Breyer, Elena Kagan, Brett Kavanaugh, and Neil Gorsuch. All rejected a key claim of the Respondents (Pennsylvania, et al.) that the HHS lacked the authority to issue the exemption. Justice Thomas addressed this issue as follows: “[T]he plain language of the statute clearly allows the Departments to create the preventive care standards as well as the religious and moral exemptions.” The majority also rejected the arcane argument that the Trump administration violated the Administrative Procedure Act (APA). In other words, HHS failed to adhere to the bureaucratic guidelines for issuing the new rule. Jonathan Adler, the Johan Verheij Memorial Professor of Law at Case Western Reserve University, explains:
Perhaps more significantly for administrative law, the Court held that the Third Circuit was wrong to demand evidence that the agency “maintained an open mind” during the rulemaking process. The APA contains no such requirement, Justice Thomas explained, and courts have no lawful basis to impose one. Instead, a reviewing court should stick to evaluating whether the agency complied with the “objective criteria” specified in the APA. This is a significant holding.
Many readers will respond by asking themselves, “Significant to whom?” Well, the debate over administrative law and the “non-delegation doctrine” is what passes for a knock-down-drag-out among high profile academic lawyers. Moreover, the “conservative” members of the Supreme Court tend to regard administrative law with a jaundiced eye — and the contraception mandate is a textbook example. The comically titled “Affordable Care Act” contains no such mandate. Indeed, the word “contraception” appears nowhere in its text. The mandate is the creation of former HHS Secretary Kathleen Sebelius and her minions. They simply decreed that all valid health insurance plans would pay for all FDA-approved contraceptives.
For the Little Sisters of the Poor, this meant the Obama administration would force them to exchange their deeply held religious beliefs for the sacraments of the secular state — including covering the costs of birth control and abortifacients. Obamacare exempted churches from the mandate, but not faith-based ministries, hospitals, universities, and independent social service organizations. Ministries like the Little Sisters were afforded no exemption. If the fines imposed by the Obama administration on the Little Sisters hadn’t been enjoined by the Court nearly seven years ago, the Little Sisters of the Poor would not be able to carry out their ministry in the United States. As Mark Rienzi, President of the Becket Fund for Religious Liberty, put it,
America deserves better than petty governments harassing nuns. The Court did the right thing by protecting the Little Sisters from an unnecessary mandate that would have gutted their ministry. Governments don’t need nuns to distribute contraceptives. But they do need religious groups to care for the elderly, heal the sick and feed the hungry. These governments all have real work they ought to be doing rather than dividing people with old and unnecessary culture wars.
All of which brings us back to the other big winner of Wednesday’s SCOTUS ruling. Little Sisters of the Poor Saints Peter and Paul v. Pennsylvania is an unambiguous victory for President Trump. As Marjorie Dannenfelser, President of the Susan B. Anthony List, phrased it, “Today is a major victory for President Trump, who has courageously fought to protect the Little Sisters of the Poor from the Obama-Biden HHS abortifacient mandate.” He has fulfilled one of his most important campaign pledges and achieved a major victory for religious liberty. As his probable opponent in next November’s presidential election might put it, “This is a big #%&$*% deal.”
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