Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania

Congressmember Debbie Lesko showing her support for the Little Sisters of the Poor Saints Peter in 2020.

The Patient Protection and Affordable Care Act (ACA) was passed in 2010 under President Barack Obama. As passed, it included a contraceptive mandate established by the United States Department of Health and Human Services (HHS) through the Health Resources and Services Administration (HRSA), that all employers with the exclusion of churches and other non-profit religious groups must offer plans that include some coverage of contraceptive costs. This applied to religious schools and other for-profit organizations. The mandate led to the Supreme Court case Burwell v. Hobby Lobby Stores, Inc.,[1] where the Christian-based retail franchise Hobby Lobby argued that the mandate violated their free exercise of religion rights established by the First Amendment of the United States Constitution and affirmed in the Religious Freedom Restoration Act (RFRA). The Supreme Court affirmed this in its 5–4 ruling, and instead created a temporary exemption that followed the same process used by non-profit religious groups, in which those religious organizations could send a special form to the HHS to state their objection. The HHS then would deal with the insurance agency to assure coverage for contraceptive insurance costs and deal directly with employees, thus eliminating the religious organization's involvement in the mandate.[3]

This approach still remained controversial since it left the contraceptive mandate in place, and several lawsuits were filed in the Circuit Courts. A circuit split was created, and the Supreme Court consolidated seven cases into Zubik v. Burwell.[2] Before the case was heard in oral arguments, Justice Antonin Scalia died, and as he had joined the majority in Hobby Lobby, the possibility of a deadlock court was raised. The court did not come to a final opinion on Zubik but instead vacated all decisions on the cases and remanded to their respective courts for further review. Instead, in a per curiam order in May 2016, the Supreme Court requested the parties and courts to work with the HHS to come up with regulations that respected the parties' concerns. The Supreme Court emphasized in their instructions that the petitioning parties, the religious organizations, had stated in their court documents that "their religious exercise is not infringed where they 'need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception'" and urged the parties to find a solution amenable to that position.[4]

Parties expected to move forward through a standard approach to introducing new executive regulations, in which HHS published a request for information in July 2016, after which it would have drafted new regulations, posted them within the Federal Register for public comment before making a final rulemaking decision. However, with Donald Trump becoming President at the start of 2017, the agenda of many of the executive branch agencies quickly altered. In May 2017, Trump enacted Executive Order 13798, "Promoting Free Speech and Religious Liberty" which directed the HHS to consider alternate routes to address conscience-based objection.[5] and leading to the HHS issuing new interim rules that allowed employers with either religious or moral objections to be exempted from the contraceptive mandate of the ACA.

Multiple states challenged the new rules. Among the first was the state of Pennsylvania and later joined by New Jersey, which challenged the Government in the United States District Court for the Eastern District of Pennsylvania, asserting that the process violated the Administrative Procedure Act (APA), Title VII of the Civil Rights Act of 1964, and the Equal Protection Clause of the Fourteenth Amendment and the Establishment Clause of the First Amendment of the Constitution. The Little Sisters of the Poor Saints Peter and Paul Home, one of the religious organizations that had been part of the earlier litigation, sought to intervene since they would be affected by a ruling favoring the state, which the District Court denied but was reversed by the United States Court of Appeals for the Third Circuit. The District Court subsequently granted a temporary injunction on the new HHS rulings,[6] which the Third Circuit upheld, stating that the new rules violated the APA and were unnecessary by both the ACA and the RFRA making them arbitrary and capricious, and ordering a nationwide injunction on their use.[7][8]

By the time the Pennsylvania case was certified at the Supreme Court, the rules had already received a second injunction from being enforced from the Ninth Circuit.[9]

Both the government and Little Sisters petitioned the Supreme Court on the Third Circuit decision.[10] The Supreme Court certified the cases in January 2020, consolidating both the Little Sisters and government petition.[9]

Oral arguments were heard on May 6, 2020, part of the set of cases heard via teleconference due to the COVID-19 pandemic. Court arguments were made trying to balance religious freedom versus women's health. Justice Ruth Bader Ginsburg, who had just undergone an emergency surgical procedure, called in from her hospital room while recovering to remind the court that "In this area of religious freedom the major trend is not to give everything to one side and nothing to the other side. We have had a history of accommodation, of tolerance."[3]

The Supreme Court issued its ruling on July 8, 2020.[11][12] The decision found that the rules put forth by the HHS and other departments were valid as they had the authority under the ACA to issue them, and that there were no procedural issues under the APA with how they were put into place. The ruling reversed the Third Circuit and remanded the case for review. The 7–2 majority opinion was written by Justice Clarence Thomas which was joined by Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch and Brett Kavanaugh. Thomas wrote that "We hold that the [administration] had the authority to provide exemptions from the regulatory contraceptive requirements for employers with religious and conscientious objections."[13]

Justice Elena Kagan wrote a concurrence in judgement, joined by Justice Stephen Breyer. Kagan agreed with the majority in that the HHS and other departments did have authority to issue new rules, but was not sure if the proposed rules met the APA challenge and agreed with remanding the case to the lower courts for further review on this matter.[13][14]

Justice Ruth Bader Ginsburg wrote the dissent, joined by Justice Sonia Sotomayor. Ginsburg wrote critically "Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree."[13][14] The dissent would be the last authored by Justice Ginsburg prior to her passing in September 2020.[15]

• Text of Little Sisters of the Poor Saints Peter and Paul Home v. Pa., No. 19-431, 591 U.S. ___ (2020) is available from:  Justia  Oyez (oral argument audio)  Supreme Court (slip opinion)