The Supreme Court said in Burwell v. Hobby Lobby (2014) that, under the Religious Freedom Restoration Act, the Department of Health and Human Services (HHS) could not apply its contraceptive mandate to closely held for‐profit corporations when doing so would violate the owners’ sincere religious beliefs. This is the only way to remedy the substantial burden placed on their free exercise of religion, imposed on them by dint of their organizational form and other agency‐contrived criteria. That distinction did not and does not hold up, however, as the Little Sisters continue to maintain that the mere “accommodation” makes them violate their sincerely held religious beliefs. Yet even if New Jersey and Pennsylvania (the parties now opposite the Little Sisters) are correct that the new exemption cannot go into effect, the Court will still have to decide what alternate regime complies with RFRA. Executive agencies simply cannot impose arbitrary burdens on religious non‐profits that they guesstimate to be “less” religious than churches. It justified this distinction by saying that non‐church religious employers were “more likely” to employ people who did not share their faith or adhere to the same objection. In doing so, the department claimed to try to balance religious liberty and access to contraceptives by exempting churches and accommodating other religious employers. Writing for the Court, Justice … 1—exempted certain employ ers who have religious and conscientious objections from this agency-created man-date.
It is particularly unlikely that Congress would have delegated, without any statutory guidance, this sort of authority, given that the relevant agencies have no expertise in crafting religious accommodations. 2 LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME v. PENNSYLVANIA Opinion of the Court of Health and Human Services, Labor, and the Treasury (Departments)—which jointly administer the relevant ACA provision.
Here’s the deal: Although the Affordable Care Act said nothing about accommodating or exempting religious organizations from the requirement of providing employees “preventive care” (a term undefined in the statute’s text), HHS issued a rule that exempted churches and their “integrated auxiliaries” from the mandate altogether but required other religious organizations to submit a self‐certification that would lead insurers or third‐party administrators to cover the cost of the objectionable contraceptives. Oral argument took place on May 6, 2020. 1000 Massachusetts Ave. NW Now the case has returned to the Court’s marble steps, offering the justices another chance to provide the Little Sisters and similarly situated groups real protection. October 1, 2019: The Little Sisters of the Poor Saints Peter and Paul Home, the petitionerA party petitioning an appellate court to consider its case., filed a petition with the U.S. Suprem… On July 8, 2020 the Supreme Court ruled 7-2 in favor of the Little Sisters of the Poor, allowing them to continue serving the elderly poor and dying without threat of millions of dollars in fines. While the Supreme Court stopped the operation of the contraceptive mandate against the Little Sisters in light of Hobby Lobby, their case is still active. Commons Attribution-NonCommercial-ShareAlike 4.0 International License. With a new administration, the balance of the parties has changed and the White House seeks a more expansive exemption—one that would arguably cover the Little Sisters. On January 17, 2020 the Supreme Court agreed to review the Third Circuit’s decision in Little Sisters of the Poor v. Commonwealth of Pennsylvania. 2. Cato Institute Consequently, religious nonprofit organizations, such as Little Sisters of the Poor, were fined if they did not comply with the law. There is no indication in the ACA’s 900+ pages that Congress intended for HHS to make religion‐related judgment calls; the word “religion” does not even appear anywhere. The following timeline details key events in this case: 1. The Little Sisters … Receive periodic updates on Cato research, events, 3. That is, if the Court takes seriously Cato’s doubts about agency authority in this case, it cannot just consider the expanded exemptions in a vacuum and call it a day. Although administrative law’s Chevron doctrine allows agencies to fill in the gaps where statutory language is ambiguous, that power does not entitle agencies to make major decisions that alter the fundamental aspects of religious free exercise when the only potential source of that power is the term “preventive care.” Finally, where there is a lack of clear indication of congressional delegation, the Court must avoid constitutional questions that could lead to church‐state entanglement, as is likely the case when an agency picks and chooses which religious tenets it respects or ignores. The law specifically exempted churches, but not faith-based ministries. Unfortunately, the Supreme Court in Zubik did not decide whether the post‐Hobby Lobby regulations were the least restrictive means of serving the government’s interest in the “preventive care” provision, remanding the case—and the 800‐pound religious‐liberty gorilla—to the lower courts. Around the time of that decision, the Court stayed the application of the mandate to nonprofits, including a group of nuns known as the Little Sisters of the Poor. The answer, both then and now, is no. and publications. Oral arguments in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvaniawere initially scheduled for April 29, 2020. Consolidated with: Trump v. Pennsylvania In appealing to the Supreme Court to resolve the issue once and for all, Cato and the Jewish Coalition for Religious Liberty propose the same question Cato asked the Court to resolve in Zubik: Whether HHS and other federal departments have the interpretive authority to craft a religious “accommodation” pursuant to the ACA’s “preventive care” mandate. January 17, 2020: The U.S. Supreme Court agreed to hear the case. First, the accommodation—third-party coverage of “preventive care” upon self‐certification of a belief‐based objection—was crafted without any statutory anchor. Washington, DC 20001-5403, Taking a Hard Look at DHS v. Regents of the University of California, Pennsylvania Must Fund Students, Not School Districts, Examining Data on Bullying, Violence and School Climate in Pennsylvania, Creative April 3, 2020: The U.S. Supreme Court postponed its April sitting. Second, the departments lack the “expertise” to answer this “major question” of social, “economic and political consequence,” to quote King v. Burwell (the 2015 statutory challenge to Obamacare), and are not entitled to make religious‐liberty policy or receive judicial deference when they do.