Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 U.S. 657 (2020), was a United States Supreme Court case involving ongoing conflicts between the Affordable Care Act (ACA) and the Religious Freedom Restoration Act (RFRA) over the ACA's contraceptive mandate. The ACA exempts nonprofit religious organizations from complying with the mandate, to which for-profit religious organizations objected.
The case is a result of prior court actions in Burwell v. Hobby Lobby Stores, Inc., in 2014, and Zubik v. Burwell,. in 2016, which left the United States Department of Health and Human Services (HHS) to promulgate new regulations on the mandate. President Donald Trump issued an Executive Order to the HHS to bypass the traditional regulatory process, leading HHS to devise new rules in late 2017 to give for-profit groups exemptions for religious or moral objections to the mandate. Several states sued the federal government, and multiple Circuit Courts placed injunctions on the new rules as arbitrary and capricious and required by neither the ACA or the RFRA, violating the Administrative Procedure Act (APA). This case was a consolidation of two appeals from the injunction placed by the United States Court of Appeals for the Third Circuit. The Supreme Court ruled on July 8, 2020, in a 7–2 decision that the new rules were valid, as the associated departments had the authority to promulgate the exemptions, and that the process to put the rules in place did not violate the APA.
Background Burwell v. Hobby Lobby Stores, Inc. The Patient Protection and Affordable Care Act (ACA) passed in 2010 under President Barack Obama. The ACA did not displace the system then in effect whereby most of the U.S. population receives health insurance under plans that their employers arrange through the private market. Instead it sought to expand the number who are insured and improve and subsidize insurance coverage. Regulations within the ACA and its Women's Health Amendment imposed a range of requirements on group health plans, which included that they cover "essential health benefits", including "preventative and wellness services" from health care providers without imposing cost sharing on patients. The Obama administration, through the United States Department of Health and Human Services (HHS) as directed through the Health Resources and Services Administration (HRSA), decided that to meet "compelling health and gender equity goals", the ACA's "preventative and wellness services" included contraceptives. This contraceptive mandate required employers with more than 50 employees to offer health plans that included some coverage of contraceptives. Churches were exempted from the mandate, but other nonprofit religious groups were initially required to comply. Numerous religious groups, both for- and nonprofit and particularly those of the Catholic faith, were critical of the mandate, arguing that the use of contraceptives is morally wrong and a sin. To accommodate these complaints, the Obama administration refined an exception for nonprofit religious groups to allow them to submit Employee Benefits Security Administration (EBSA) Form 700 to the HHS to request an exception, starting on January 1, 2014. With an approved exception, the HHS was then to work with the groups' insurance carriers to cover the cost of contraceptives.
Even with the changes, there was still opposition to the mandate from for-profit religious groups, leading to the Supreme Court case Burwell v. Hobby Lobby Stores, Inc. to review the ruling from the United States Court of Appeals for the Tenth Circuit. The Christian-based retail franchise Hobby Lobby argued that the mandate violated its 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, holding that the administration's mandate created a substantial burden on for-profit religious organizations, and that because the administration was able to set a special exemption for nonprofit religious groups, there was a similar way to reduce that burden on for-profits. The Supreme Court's decision created a temporary exemption that followed the same process via Form 700 used by nonprofit religious groups.
Zubik v. Burwell The decision in Hobby Lobby remained controversial since it left the contraceptive mandate in place. Nonprofit religious organizations claimed that even with the exception, they would be complicit in offering contraceptives to employees. Several lawsuits were filed in the Circuit Courts. A circuit split was created, and the Supreme Court consolidated seven cases into Zubik v. Burwell in challenge to the United States Court of Appeals for the Third Circuit's ruling, which upheld the nonprofit exception route.
Before Zubik was heard in oral arguments, Justice Antonin Scalia died, and as he had joined the majority in Hobby Lobby, the possibility of a tie vote arose. The court did not come to a final opinion on Zubik but instead vacated all decisions on the cases and remanded them to their respective courts for further review. 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 its 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.
Post-Zubik events 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. But with Donald Trump becoming president at the start of 2017, many of the executive branch agencies' agendas quickly altered. In May 2017, Trump enacted Executive Order 13798, "Promoting Free Speech and Religious Liberty", which directed HHS to consider alternate routes to address conscience-based objection and led HHS to issue new interim rules that allowed employers with religious or moral objections to be exempted from ACA's contraceptive mandate.
Multiple states challenged the new rules. Among the first was Pennsylvania; later, New Jersey 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 it 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, which the Third Circuit upheld, finding that the rules violated the APA and were unnecessary under both the ACA and the RFRA, making them arbitrary and capricious. It ordered a nationwide injunction on their use.
By the time the Supreme Court agreed to hear the Pennsylvania case, the rules had also been enjoined by the Ninth Circuit.
"Moral Cooperation with Evil" and Form 700 Despite the federal government's and the Supreme Court's efforts to resolve the issue, several Catholic groups, including the Little Sisters, denied that any accommodation had been made at all.
Writing for Religion News Service, Thomas Reese reported that the Obama administration had hoped to resolve the issue through a workaround whereby religious nonprofits that objected to the mandate would send in a signed form saying that they objected to covering contraception in their insurance plans. Rejecting this, the Little Sisters held that "even signing the government-mandated form would be 'cooperating with evil.'" They called it a "permission slip" that could allow someone else to provide contraceptives. Reese was even consulted by the Obama administration and suggested that no form be required, but was told "that the complexity of the industry made my suggestion unworkable."
Citing the same moral theory, the Sisters' co-litigants Priests for Life held that filing out the government paperwork (Form 700) would not only register their objections and exempt them from participation in the plan but would also trigger a series of events that in the end would result in the delivery of contraception to persons in their employ who sought it. Their brief to the Court stated that this would cause "mortal sin and scandal" and that "This is true whether the immoral services are paid for directly, indirectly, or even not at all by Priests for Life. …the burden imposed upon Petitioners' religious exercise by the challenged mandate is precisely the same whether the government is forcing Petitioners to authorize and facilitate 'access to and utilization of' contraceptive services for Priests for Life's plan participants and beneficiaries via submitting a 'certification' or notice or via payment to Priests for Life's insurance carrier."
Covering the controversy for Roll Call, Melinda Henneberger wrote, "Religious nonprofits can be exempted if they sign a form notifying the government, which then sets up the coverage through the group's existing plan at no additional cost to the organization." She put the matter to the Witherspoon Institute’s Matthew J. Frank, who responded that for the Catholic groups in the case, "signing the form is the violation of the faith. At a minimum it is material cooperation with evil, because the signature on the form or letter is the 'but for' cause of the evil being done—that is, but for the Little Sisters signing the form the government demands, the transaction of their insurers providing the contraception the government demands would not occur."