Supreme Court Contraceptive Mandate Decision a Small Victory



Nuns of the Little Sisters of the Poor at the Supreme Court, March 2016. (File photo: Joshua Roberts/Reuters)

In a modest victory for freedom, the Supreme Court has upheld the Trump administration’s protections for employers who object to having to provide coverage for contraception, abortifacients, and sterilization.

This mandate has been plaguing religious groups for nearly a decade. Obamacare required employers to provide preventive services, and the Obama administration decided first that those services include contraception and sterilization, and then that exemptions on religious grounds would be granted sparingly. The mandated coverage included drugs that the administration admitted could result in abortion.

The Little Sisters of the Poor, a charitable order of nuns who adhere to Catholic Church teaching on contraception and abortion, were among the many religious organizations who were supposed to provide this coverage. Eventually, the Obama administration offered an “accommodation,” but its terms were unsatisfactory to the nuns, as it required them to sign a form authorizing the use of their insurance network to provide the coverage.

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Since then, we have witnessed near-constant legal battles over this requirement. This latest iteration, Little Sisters of the Poor v. Pennsylvania, et al., consolidated several cases in which progressive state governments sued the Trump administration, arguing that it didn’t have the authority to institute religious and moral exemptions to the mandate.

The Third Circuit Court of Appeals ruled that the exemptions could not be given, even though the Supreme Court already had urged the government and objecting employers to reach a settlement, implying that the executive branch could further revise its policy.

Writing for the majority, Justice Clarence Thomas concluded that the relevant departments did in fact have “the authority to provide exemptions from the regulatory contraceptive requirements for employers with religious and conscientious objections.”

This is a welcome decision, upholding as it does the Trump administration’s authority to create carve-outs not only for religious employers but also for anyone with moral objections to the mandate’s requirements. It does not, however, go as far as one might hope, as Justice Alito notes in his concurrence, joined by Justice Gorsuch.

While this ruling determined on procedural grounds that the administration was within its rights to exempt some employers from the mandate, it did not address the question of whether the Religious Freedom Restoration Act compels exemptions of some kind for employers with religious objections, as Justices Alito and Gorsuch persuasively argue that it does.

Declining to rule on those grounds, the Court’s majority opinion returns the Little Sisters to the appeals court that already botched this case. The Third Circuit now has another chance to rule against them and deem the Trump-administration policy “arbitrary and capricious.”

A better outcome would have been to apply the RFRA, considering whether the mandate serves a compelling government interest, whether it imposes a substantial burden on religious employers, and whether it accomplishes its goals by the least restrictive means possible. Though today’s decision was a small victory, it will take a more sweeping decision to offer some finality to debates over the mandate.

The Editors comprise the senior editorial staff of the National Review magazine and website.


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