September 5, 2016
by John Kaempf

The Little Sisters Of The Poor Obamacare Contraception Mandate Case: A Victory For Religious Liberty This Year.

In Little Sisters of the Poor v. Burwell, a 2016 decision, the U.S. Supreme Court addressed the “HHS mandate” in the Obamacare law and the “accommodation” to that contraception mandate that the Obama administration put forward for the Little Sisters of The Poor and other similarly situated religious organizations.

The HHS mandate requires employers to include in their insurance offerings coverage for contraceptives, including products that can induce early-pregnancy abortions.

The Court vacated the lower court’s ruling that the Little Sisters had to facilitate access to contraceptives, and that the contraceptive mandate in Obamacare did not substantially burden their religion.

The Court provided a roadmap for an ultimate resolution to the case by outlining the accommodation it suggested and the Little Sisters endorsed, and which the government reluctantly agreed to.

Following oral argument, the Court requested supplemental briefing from the parties addressing “whether contraceptive coverage could be provided to petitioners’ [the Little Sisters’] employees, through petitioners’ insurance companies, without any such notice from petitioners.” Both petitioners and the Government now confirm that such an option is feasible. Petitioners have clarified that their religious exercise is not infringed where they need to do “nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company. The Government has confirmed that the challenged procedures for employers with insured plans “could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.”

The government will now have difficulty credibly arguing in lower courts that the Supreme Court’s suggested compromise should be set aside.

This ruling was unanimous. That means the Department of Justice should not assume that it can simply wait out the presidential election and pursue its original claims with the same hope for success — especially if it spends the intervening years rejecting a compromise that it already seemed to accept.

The current administration has repeatedly taken positions against religious liberty — on this occasion too extreme even for the Supreme Court’s liberal justices.

Of course, while it would have been preferable for religious institutions to have won the Little Sisters case on the merits, the outcome is not what opponents of religious freedom hoped for. Also, the ruling is better than the 4-4 tie that most people predicted.

A 4-4 tie would have let stand lower court rulings against the Little Sisters and most of the other religious organizations challenging the mandate.

This outcome, by contrast, provides a judicial roadmap for an eventual victory for religious liberty.