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.”