Little Sisters of the Poor v. Price
What’s at Stake
A Catholic order of religious women who care for the elderly poor are being forced by the government to provide services against their faith.
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In May 2017, President Trump issued an Executive Order directing HHS and other federal agencies to protect the Little Sisters of the Poor and other religious ministries from the HHS Mandate. Following the order, HHS Secretary Tom Price said that HHS “will be taking action in short order” to protect the Little Sisters and other religious ministries harmed by the Mandate. This means that the agencies must fix their rules to exempt the Little Sisters and other religious groups from the HHS mandate. It also means that the agencies must end their unnecessary legal fights against the Little Sisters and other ministries in courts around the country.
In May 2016, the Supreme Court unanimously overturned lower court rulings against the Little Sisters, ordered the government not to fine the Little Sisters, and said the lower courts should provide the government an opportunity “to arrive at an approach going forward that accommodates the petitioners’ religious beliefs.”
President Trump’s order and the unanimous decision by the Supreme Court was a big win for the Little Sisters. But that does not mean anyone lost. As the Little Sisters have argued all along, the solution in no way bars the government from providing these services to women who want them as long as the government stops trying to take over the Little Sisters’ health plan. In fact, any alternative delivery method the government chooses would likely be able to be applied—not only to women in religious plans—but to the tens of millions of women in corporate and government plans HHS had previously exempted from the mandate.
Indeed, the previous administration confirmed that the HHS mandate was unnecessary by affirming that the government was still able to providing the mandated services for free to any woman who wanted them even after the Court ruling protected the Little Sisters from complying with the mandate. The previous administration’s stated willingness to acknowledge that the Little Sisters’ religious objections have never threatened any woman’s access to contraception — that women can get that coverage “right now” and can “continue” to get it even without a takeover of the Little Sisters’ health plan — was the natural outcome of the evolution of the government’s argument in this case.
Following oral arguments before the Supreme Court, the government admitted to the Court that it could provide the services in ways other than those required in the contraception mandate. It also admitted that the mandate required the Little Sisters’ participation and the use of their plan. This admission meant the Court did not need to decide on the merits of the government’s original argument that its interests should override the Little Sisters’ religious liberty. With the government’s admission, the path was cleared for the Supreme Court to tell the lower courts to reconsider their rulings in light of the government’s admissions and help ensure the government settled “on an approach that accommodates” the Little Sisters’ beliefs.
In light of President Trump’s order and the Supreme Court’s decision, the Little Sisters expect the government to quickly decide on a workable solution so the Little Sisters can return their full attention to their mission of serving the elderly poor.
On October 6, 2017, the government issued a new rule with a broader religious exemption. The rule may be changed after the government considers the comments it receives. Becket attorney Mark Rienzi stated, “It should be easy for the courts to finalize this issue now that the government admits it broke the law. For months, we have been waiting for Department of Justice lawyers to honestly admit that fact, like the President did in the Rose Garden five months ago. Now that the agencies admit the mandate was illegal, we expect the leadership of the Department of Justice will cooperate in getting a final court resolution.”
Frequently Asked Questions
- Where was the lawsuit filed, and what is its status now?
- How much are the fines if the Little Sisters do not comply?
- But what about the Hobby Lobby decision—didn’t that ruling protect ministries already?
- Isn’t there a “religious employer exemption” that would cover the Little Sisters?
Where was the lawsuit filed, and what is its status now?
The lawsuit was filed in the federal district court in Denver, Colorado on September 24, 2013. The court ruled against the Little Sisters and refused to give them temporary relief from the mandate, which meant they would face the prospect of up to $70 million in government fines per year unless they provided services contrary to Catholic teachings. This forced the Little Sisters to ask the Supreme Court for temporary relief while the case is ongoing. Justice Sotomayor granted the Little Sisters relief on December 31, 2013. The Tenth Circuit Court once again ruled against the Little Sisters in July 2015. The Little Sisters filed a petition to the Supreme Court and their case was granted on Nov. 6, 2015, and consolidated with 6 other non-profit religious ministries cases (view complete list). The Little Sisters case will be heard March 23, 2016.
How much are the fines if the Little Sisters do not comply?
The Little Sisters have 27 homes in the United States. The government is threatening fines against the Sisters of about $100 per employee per day. In total, the Little Sisters could be forced to pay $70 million in fines per year, which is roughly one-third of their operating budget. These fines are severe and would needlessly take money that should be spent on the Little Sisters ministry of caring for the elderly poor.
But what about the Hobby Lobby decision—didn’t that ruling protect ministries already?
The Hobby Lobby decision should have resolved this issue. However, some courts have ruled against ministries like the Little Sisters because they say that the government’s rules for non-profits work differently than for-profit organizations. Such judges argue that religious non-profit groups like the Little Sisters should not feel complicit when they are forced to change their healthcare plans to provide services such as ella, the week after pill. However, it is up to the Little Sisters, not the government, to determine whether such actions are a violation of their faith. Indeed, 20 federal appellate judges have signed opinions agreeing the government has no right to tell the Little Sisters what is and is not against their religious beliefs. The Little Sisters’ faith prohibits them from giving into the government’s demands. The Little Sisters cannot in good conscience authorize their health plans to provide services. It makes no sense for the government to make the Little Sisters provide those services since they can be easily obtained through the government’s own exchanges.
Isn’t there a “religious employer exemption” that would cover the Little Sisters?
No. The government says The Little Sisters are not religious enough to be exempt, and insists that the mandate exemption apply only to churches and church-controlled ministries. Absurdly, the government has admitted it is simply guessing about whether the Little Sisters’ homes are more or less religious than other organizations. And even the religious exemptions are narrow compared to the grandfathered exemptions for large corporations such as Exxon, Visa, large municipalities like the City of New York and even the government’s own military healthcare, Tricare for convenience or financial reasons. All told, one-third of Americans don’t have plans subject to the government’s mandate.
Amicus Briefs Supporting the Little Sisters
Amicus briefs, or “friend-of-the-court briefs,” are filed by groups, individuals, and scholars who are not part of the case before the Supreme Court, but who care about how the Court rules. There are two stages when amicus briefs may be filed — at the certiorari stage and the merits stage.
In Little Sisters of the Poor v. Burwell, 16 amicus briefs were filed at the certiorari stage. The briefs include powerful arguments from leading scholars, top Supreme Court practitioners, and prominent religious leaders, forming a diverse coalition in support of the Little Sisters of Poor before the Supreme Court.
Merits-stage amicus briefs supporting the Sisters, Houston Baptist and East Texas Baptist universities and other non-profit organizations were filed January 11. Here are some highlights from the amicus briefs in support of the Little Sisters of the Poor:
Briefs in Support of Little Sisters (43)
|13 Law Professors||McGuireWoods||The contraceptive mandate burdens petitioners’ religion by commandeering their property and using it to distribute contraceptives and life-terminating drugs and devices|
|20 States||Attorney General of Texas||The mandate’s alternative method of compliance is not the least restrictive means of providing no-cost contraceptives to petitioners’ employees|
|50 Catholic Theologians and Ethicists||James Otis Law Group||Analysis of Catholic moral theology regarding the Mandate|
|207 Members of Congress||Covington & Burling||RFRA reflects our broad tradition of religious liberty protection|
|Agudas Harabbanim of the United States and Canada, Agudath Israel of America, National Jewish Commission on Law and Public Affairs, National Council of Young Israel, Orthodox Union, Rabbinical Alliance of America, Rabbinical Council of America, Torah Umesorah||Lewin & Lewin||Problems from Orthodox Jewish perspective of treating houses of worship as of greater sanctity than yeshivas|
|American Association of Pro-Life Obstetricians & Gynecologists, Association of American Physicians & Surgeons, Catholic Medical Association, Christian Medical Association, National Association of Pro Life Nurses, National Association of Catholic Nurses U.S.A., National Catholic Bioethics Center, and Physicians for Life||Americans United for Life||Certain FDA-approved drugs and devices covered by the Mandate can terminate an embryo|
|American Center for Law & Justice||American Center for Law & Justice; Center for the Study of Law and Religion, Emory University School of Law||Religious organizations provide numerous secular benefits to society and a rejection of petitioners’ RFRA claim will negatively impact their ability to provide services to those in need.|
|American Islamic Congress, Chaplain Alliance for Religious Liberty, Church of God in Christ, General Conference of Seventh-day Adventists, Lutheran Church—Missouri Synod, Orthodox Church in America, Queens Federation of Churches||Schaerr Law Group; Church of God in Christ, General Conference of Seventh-day Adventists, Orthodox Church in America||To avoid government intrusion into religious affairs, the test for “substantial burden” should focus on the sincerity of the religious belief and the objective seriousness of the penalty for non-compliance|
|Anglican Church in North America Jurisdiction of the Armed Forces and Chaplaincy, Ave Maria University||Prof. Scott Gaylord||Courts may not usurp the right of religious adherents to determine their own views regarding moral complicity|
|Assemblies of God, Church of Jesus Christ of Latter-day Saints, Colorado Christian University, National Association of Evangelicals, Sisters of St. Francis of Perpetual Adoration||Kirton McConkie||RFRA properly accounts for the concerns of third parties by means of its balancing test|
|Association of Catholic Colleges and Universities, Cardinal Newman Society, Catholic Relief Services, Family Research Council, Institutional Religious Freedom Alliance, Thomas More Society, United States Conference of Catholic Bishops, World Vision||United States Conference of Catholic Bishops||Faith-based organizations do a great amount of good and should not be forced out of providing social services|
|David Boyle||David Boyle||Amicus’ musings on religious discord|
|Breast Cancer Prevention Institute||Bioethics Defense Fund; Life Legal Defense Fund||Medical research regarding mandated items|
|Carmelite Sisters of the Most Sacred Heart of Los Angeles, Religious Sisters of Mercy of Alma, Michigan, School Sisters of Christ the King of Lincoln, Nebraska||Gibson, Dunn & Crutcher||HHS’s discriminatory regulations raise serious constitutional problems that can be avoided only by adopting petitioners’ construction of RFRA|
|Catholic Benefits Association||Lewis Roca Rothgerber Christie||The accommodation burdens employers’ religious exercise by hijacking their health plans for the delivery of morally objectionable drugs and devices|
|Catholic Defense League||Andrew Schlafly||The mandate violates Catholic beliefs|
|Cato Institute and Independent Women’s Forum||Cato Institute, Prof. Josh Blackman, Prof. Erin Hawley, Prof. Joshua Hawley||The ACA does not delegate to the Departments the authority to discriminate among religious nonprofits|
|Christian and Missionary Alliance||O’Melveny & Myers; Liberty Institute||HHS impermissibly distinguishes between religious believers, fully protecting only those groups it deems sufficiently “religious”|
|Christian Legal Society, Association of Christian Schools International, American Association of Christian Schools||Wilmer Hale||Devastating effects on religious liberty if lower courts’ interpretation of the substantial burden standard is allowed to remain|
|Church of the Lukumi Babalu Aye, International Society for Krishna Consciousness, Islamic Center of Murfreesboro, Pastor Robert Soto and other members of the Lipan Apache Tribe||Baker Botts||The experience of Amici shows that allowing government to second-guess religious beliefs and favor some religious groups over others uniquely harms the very minority religions that RFRA was designed to protect|
|College of the Ozarks||Husch Blackwell||The HHS regulations impose a substantial burden on the College’s religious beliefs|
|CNS International Ministries and Heartland Christian College||Ottsen, Leggat & Belz||History of the government’s eight changes to the contraceptive mandate, each time claiming the latest iteration was the least restrictive means available|
|Concerned Women for America||National Legal Foundation||Women value religious freedom, ministry, and service|
|Constitutional Law Scholars||Hunton & Williams||RFRA properly balances religious freedom and third-party interests|
|Council for Christian Colleges and Universities||Warner Norcross & Judd||The government’s decision to exempt churches, but not religious colleges like Petitioners, is arbitrary and cannot survive strict scrutiny|
|Dominican Sisters of Mary, Mother of the Eucharist, Sisters of Life, Judicial Education Project||Pillsbury Winthrop Shaw Pittman; Judicial Crisis Network||The Government intentionally used Section 6033 to gerrymander the religious exemption|
|Eagle Forum Education & Legal Defense Fund||Lawrence Joseph||The Mandate burdens religion and there is no compelling governmental interest|
|Eternal Word Television Network||Duncan PLLC||The religious exercise at issue is avoiding complicity in someone else’s wrongdoing and the so-called “accommodation” does nothing to diminish that complicity|
|Ethics and Public Policy Center||Munger, Tolles & Olson||Consistent with familiar strict scrutiny principles, RFRA includes stringent standards with respect to compelling governmental interest and least restrictive means; the government does not meet these standards|
|Ethics & Religious Liberty Commission, the International Mission Board of the Southern Baptist Convention, Dr. R. Albert Mohler, Jr., Southern Baptist Theological Seminary||Nelson Mullins; International Mission Board of the Southern Baptist Convention||Analysis of Christian doctrine and Southern Baptist teaching regarding the Mandate|
|Families of Residents at Homes of the Little Sisters of the Poor||Dwight Duncan||Stories of how the Little Sisters of the Poor have ministered to the elderly poor|
|Former Justice Department Officials||Kirkland & Ellis, Prof. Michael McConnell||The federal government’s arguments in these cases contradict the federal government’s arguments regarding moral complicity in the context of criminal prosecutions|
|Former Rep. Bart Stupak and Center for Constitutional Jurisprudence||Center for Constitutional Jurisprudence||Unelected, unaccountable regulatory agencies cannot create a compelling interest without clear authority from Congress, and that authority is lacking here|
|Foundation for Moral Law||Foundation for Moral Law||Exempting the Little Sisters from the contraceptive mandate is a less restrictive alternative|
|International Conference of Evangelical Chaplain Endorsers||Chaplains’ Counsel||The mandate is a direct attack on freedom of conscience|
|Justice and Freedom Fund||James Hirsen, Deborah Dewart||Accommodating religious employers does not constitute invidious discrimination|
|Knights of Columbus||Lewis Roca Rothgerber Christie; Knights of Columbus||The government cannot have a compelling interest in forcing some ministries to comply with the Mandate when it has voluntarily excused others that are essentially identical; Title X is a less restrictive alternative|
|Liberty Counsel||Liberty Counsel||Historical underpinnings of religious liberty|
|Dr. Michael New, Charlotte Lozier Institute||Langdon Law, Thomas Messner||Statistical research shows that increasing access to contraceptives does not decrease number of unintended pregnancies|
|Orthodox Jewish Rabbis||Howard Slugh||As a minority within a minority, Orthodox Jews will experience deprivations of their religious liberty if judges second-guess their sincerely held religious beliefs|
|Thomas More Law Center||Thomas More Law Center||The Mandate substantially burdens Petitioners’ religious exercise|
|U.S. Justice Foundation, Eberle Communications Group, Public Advocate of the U.S., Citizens United, Citizens United Foundation, Conservative Legal Defense and Education Fund, Institute on the Constitution, Policy Analysis Center, Southwest Prophecy Ministries, Daniel Chapter One, and Virginia Del. Bob Marshall||William J. Olson, U.S. Justice Foundation||Congress never mandated that contraceptives, including abortifacients, be provided to women|
|Women Speak for Themselves||Prof. Helen Alvaré||The government has not shown a compelling interest or a causal relationship between the mandate and improved health for women, nor has the government proven its claims about the mandate’s effects on women’s access to health services|