By John A. Sparks

This is the third time that the Institute for Faith and Freedom has carried an opinion piece on the Little Sisters of the Poor (LSP) and their Supreme Court fight. This 181-year-old religious order is renowned for its generosity and kindness to the poor and needy. The Sisters would seem to be unlikely litigants before the high court. However, first the LSP had to defend itself against the federal government under the Obama administration and now it has more recently been forced to protect itself against dogged state administrations in Pennsylvania and New Jersey. Why?

These governmental entities have insisted that the LSP must provide contraceptives — including abortion-inducing drugs — in the health plans they offer to their employees. The Little Sisters and other religious entities have refused to comply since 2014, always facing the threat of huge, destructive fines under the Affordable Care Act (ACA). The Sisters’ refusal comes from a deeply held religious conviction which requires them to protect innocent human life. If they furnish medical insurance under ACA requirements, they will be providing drugs which extinguish or prevent the formation of life in the womb. By doing so, they would violate their religious beliefs. Unfortunately, the original exemption fashioned under the ACA by the Department of Health and Human Services (HHS) recognized “churches,” “auxiliaries,” “conventions,” and even small employers, but it did not include religious orders like the Little Sisters, faith-based charities, religious colleges, or seminaries.

This noble religious order, standing firm for a large portion of a decade, had hoped that the Supreme Court would resolve the issue on the merits in 2016 in the Zubik v Burwell case of which the LSP were a part. However, due to Justice Scalia’s untimely death, the court was split four vs. four on the issue. The high court instead sent the case back to lower courts while encouraging the government and the sisters to negotiate a compromise solution. That never happened, primarily because the Sisters would not accept “accommodations” offered by the government which still made them complicit in wrongdoing, since any contraceptives provided would still be forcibly offered under their plan.

The picture seemed to brighten for these gentle, yet tenacious, nuns when the new administration under President Donald Trump issued revised regulations which expanded the exemption to include the LSP and other religious non-profits. This, however, was too much for the administrations of Pennsylvania and New Jersey, which filed suits to stop the new regulations. In the lower courts they sought and succeeded, remarkably, in getting a nationwide injunction against the newly expanded regulations. Even more amazingly, Pennsylvania and New Jersey did their best to keep the LSP out of the litigation claiming, in legal terminology, that they had no “standing,” that is, no stake in the outcome. The case made its way to the U.S. Supreme Court, with the Sisters still included. Oral arguments have recently been completed. What should the court do now?

On its merits, this case should be relatively easy to decide. First, the justices can rely upon the crystal-clear language of the Religious Freedom Restoration Act of 1993 (RFRA). That legislation prevents the federal government from “substantially burdening” a person’s exercise of religion. There is no doubt that the contraceptive mandate produces such a burden for the Little Sisters. They have a “choice.” Either give up their deeply held beliefs regarding the sanctity of life or be subjected to ruinous fines in the millions of dollars if they refuse to comply. Moreover, the court can readily rely upon its decision in Hobby Lobby, where it found that the contraceptive mandate could not be imposed upon an employer whose Christian convictions would have been compromised if it were compelled to furnish the contraceptives which the ACA and HHS required.

Under RFRA, once this burden is demonstrated the government still has an opportunity to show that it has a “compelling interest” in enforcing the requirement.

Here, the government faces its own inconsistency since it has exempted many other entities under earlier regulations — churches, religious auxiliaries, and small employers. If “compelling” means that what the government wants to do is so important that no exceptions can be made, then the government’s own provision of exemptions has logically sunk its own ship.

In an RFRA case, the government also must show that some other way of proceeding — which is less burdensome to the LSP — is not available. The government’s case falls apart here, too. It does have less burdensome ways of accomplishing its end. The court in Hobby Lobby suggested that the government could assume the costs of providing contraceptives without involving religious employers through, for example, Medicaid, community health-center grants, and Title X family-planning grants.

Besides RFRA, the Affordable Care Act (ACA) itself provides the government with legislative authority to formulate and expand a religious exemption to the contraceptive mandate. Under the Obama administration, it did exactly that, albeit with a narrower contour to its exemption. It did so by using the expedited procedures allowed by the Administrative Procedures Act. However, now that the Trump administration has followed the same accelerated procedures to put in place the new expanded exemptions, some Third Circuit judges and some members of the court see it as exceeding the administration’s authority under the ACA. The double standard raises its head again.

The court should uphold the new broader exemption and settle this matter in favor of the Little Sisters and other religious organizations. Then these private providers of goodwill can return to their God-given tasks without compromising their deeply and consistently held religious beliefs.

Dr. John A. Sparks is the retired Dean of Arts & Letters, Grove City College and a Fellow in the Institute for Faith and Freedom. He is a member of the state bar of Pennsylvania and a graduate of Grove City College and the University of Michigan Law School. Sparks writes regularly for the Institute on Supreme Court developments.