The Little Sisters and the Court: Muddling Through

Last week the Supreme Court broke away from its recent run of decisions and sought, for the moment, to do something decent.  The Court went again to the rescue of the Little Sisters of the Poor. . .or kind of.

With Justice Thomas writing, the Court held that the Trump Administration had not committed any foot-faults, or violations of administrative procedures, as it sought to exempt certain religious entities from the obligation to offer contraception and abortion to their employees.

The previous Administration considered that coverage to be an obligation that arose from the logic of Obamacare.  But to give them minor credit, they did seek to work out some minimal accommodations with “non-profit” groups affecting to be “religious.” The Little Sisters could get an exemption if they certified their sincere religious objections to contraception, and the trick was this:  Their insurer would pay for contraceptives in a fund separated from the health plan.

But the Sisters could not accept the clever “fix.”  If the payment was triggered by the fact that the beneficiaries were employees of the Sisters, then their employment became ground of the coverage, and the Sisters continued to see themselves as complicit in the provision of the contraceptives.

The Trump Administration sought to broaden the exemptions for religious organizations, including businesses run by people who professed to have a religious objection to contraception and abortion.  That decision brought New Jersey and Pennsylvania into court, claiming that this was a use of discretion at odds with the underlying statute and with established legal procedures.

But as Justice Thomas pointed out, it was the Congress itself, in passing Obamacare, that did not require the coverage of abortion in the plan.  That matter was left to the devising of the Administration of the day.  The Trump Administration simply exercised its discretion in a slightly different way, with a more generous accommodation for the religious.   The Court would now simply uphold the legality of that discretion, while saying nothing of the substance of the policy.

Justice Alito quickly weighed in to point out: it was that and no more than that.   The Court had done nothing to firm up the protections of the religious under Obamacare or any other law.  It simply left the matter to the discretion of the agencies, and everyone clearly knows that if a Biden Administration came into office, those executive orders of the Trump Administration would be instantly swept away.  The Little Sisters could be rattling around the courts for years to come.


Justice Alito argued that the matter could be resolved well enough with the faithful application of the Religious Freedom Restoration Act (RFRA).  That Act had been passed to correct or modify a decision written by Justice Scalia that, to my mind, has never needed a correction; and every application of the Act simply confirms how right Scalia had been.

But RFRA seemed to work aptly enough here, in Alito’s deft hands.  Even if we had a statute of “general application,” say to build roads or fix playgrounds, RFRA would invite judges to consider whether the policy still created burdens distinct to the religious.  The judges would consider then whether the State had a “compelling” interest in the policy, and whether the same ends couldn’t be accomplished with means more narrowly tailored.

Among the serious faults in this scheme was that it assigned the judges to pronounce on just what policies enacted by a legislature were more or less compelling:  whether it was a more compelling interest, say, to have publicly funded colleges rather than medical care for the aged.

Under our system of government, we already had a test for “compelling”:  namely, that a legislature thought that its constituents were willing to support and pay for such a thing as a public university and enact that commitment into law.

Alito took that test here and applied it with telling force:  The Affordable Care Act (ACA) plainly did not make that provision of free contraceptives for all women, and that “unmistakably shows that Congress, at least to date, has not regarded this interest as compelling”:

[ACA] does not provide contraceptive coverage for women outside the home.  If Congress thought that there was a compelling need to make free contraceptives available for all women, why did it make no provision for women who do not receive a paycheck?

As for the matter of means more tailored, the question answers itself – and points to the deeper malevolence at work here.  If there was truly a “compelling” interest in supplying free contraceptives to all women in the country, then the government should rightly make that commitment and raise the money to pay for it, not assign the responsibility to employers, to meet a “compelling” interest of the community at their own private expense. The matter could be handled without troubling the Little Sisters of the Poor.

As the redoubtable Mark Rienzi remarked, if the aim of public policy was to diffuse contraceptives to the country, the Little Sisters of the Poor would be an implausible vehicle.  And yet, it is strangely no longer enough, for “progressives,” that the program be funded by the government as a public commitment. For them, it is even more exquisite and morally necessary that it be used as a lever to force the recanting or humbling of those insufferably religious people who offer the most serious moral resistance to the program.

That enforcement has been interrupted for the moment.  Thanks to the Court, it simply awaits a new Administration of the Left.


*Image: Courtesy of the Little Sisters of the Poor

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.