The Little Sisters of the Poor are headed back to the Supreme Court this term.
It is unclear whether they will win this one narrowly or broadly, but they should win. Although it is unfortunate that they have had to be in court again, the Little Sisters’ second case at the Supreme Court could end up benefiting religious freedom in the future. Their opponents’ insistence on drawing them back into litigation may yield a significant precedent for interpreting the federal statutory law of religious freedom set forth in the Religious Freedom Restoration Act (RFRA).
Last time the Little Sisters went to the Supreme Court, they were plaintiffs seeking relief from the Affordable Care Act’s federal command to include contraceptive drugs and devices in their health benefits plan. This time, they intervened as defendants, while the plaintiffs are states seeking to invalidate the 2017 federal rule that protects the Little Sisters’ religious exercise by exempting their health benefits plan from contraceptives commandeering.
Last time, the Little Sisters had the Obama Administration against them. This time, they have the Trump Administration on their side.
Last time, their case was heard by an eight-justice Court without Justice Antonin Scalia and with Justice Anthony Kennedy. This time, their case will be decided by a nine-justice court that includes Justice Neil Gorsuch and Justice Brett Kavanaugh.
But one thing has not changed: The insistence of some government officials that the Little Sisters and other religious employers must implement the contraceptive mandate in violation of their religious commitments. The Obama Administration fought hard against granting the regulatory exemption that the Trump Administration later promulgated when settling the first round of contraceptive-commandeering cases. Lawsuits led by blue-state Attorneys General (this one by Pennsylvania and New Jersey, together with another one by California, Delaware, Virginia, Maryland, New York, Illinois, Washington, Minnesota, Connecticut, D.C., North Carolina, Vermont, Rhode Island, and Hawaii) picked up where the Obama Administration left off. With their party having lost at the federal level, these partisans used their state offices to go on offense against new federal rules protecting conscience and religious freedom.
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