One of my all time favorite guitarists is Stevie Ray Vaughn, who died way too young.  Stevie sang a song titled “Look at Little Sister”  which I am reminded of every time I hear about the Little Sisters of the Poor litigation involving the Affordable Care Act (ACA).  And I’ve been reminded a lot since 2017 as the Little Sisters have been before the U.S. Supreme Court twice in that time.  The issue has involved the ACA’s mandate that health plans provide coverage for contraceptives, sterilization, and certain birth control, including the morning after pill, at no additional cost.

The Little Sisters of the Poor Saints Peter and Paul Home (Little Sisters), a nonprofit Catholic order of nuns, that operate homes for the elderly poor nationwide, first objected to the coverage on religious grounds in 2013.  They complained that while certain religious organizations such as churches were exempt from the mandate, the exemption didn’t apply to them as a religious nonprofit organization and even having to file an exemption certificate declaring that the requirement was against their strongly held religious beliefs and was an unconstitutional infringement by making them complicit in providing the birth control.  After defeats in the lower courts, their case reached SCOTUS in 2016 and the Supremes overturned the lower court decisions and instructed the lower courts to provide the government an opportunity to come up with a compromise to provide birth control services to the women who want them while respecting the religious beliefs of organizations like the Little Sisters.  

In October of 2017, the Trump Administration issued a broader exemption from the rule to include nonprofit organizations and for profit companies that objected on religious grounds and also expanded it to include objections on moral grounds.  Several State Attorneys General, including California and Pennsylvania, then sued maintaining that the new broader exemption must fail as the Trump Administration violated the Administrative Procedures Act (APA) in how it issued the expanded exemption without proper opportunity for public comment and that it lacked authority under the ACA or any other legislation to enact the exemption.  In 2018, the Administration reissued the exemption and published it for public comment.  The States again challenged, and a Pennsylvania District Court issued a nationwide injunction against implementation of the new exemption in January of last year.

The Administration and Little Sisters appealed the issuing of the injunction.  In July, the United States Court of Appeals for the Third Circuit upheld the Pennsylvania District Court’s granting of the injunction.  In October, the Administration and Little Sisters asked the Supreme Court to take the case and the Court agreed to look at Little Sisters again.

Oral arguments in the case were heard via conference call due to the Covid-19 Pandemic, with Justice Ruth Bader Ginsburg attending the call from a hospital bed.  On July 8, the high Court held, 7-2, that the exemption would stand, lifting the injunction.  The decision is a bit surprising considering that this alleged conservative Court has turned out not to be so conservative (or Administration friendly) in two monumental decisions from earlier this term.  On June 15, in Bostock v. Clayton County, Georgia, the Court held that gay, lesbian, and transgender individuals are protected under the Civil Rights Act’s prohibition of discrimination on the basis of sex and on June 18 the Court ruled that the Administration’s attempt to revoke the Deferred Action for Childhood Arrivals (DACA) program’s immigration relief for so-called Dreamers was arbitrary and capricious and unenforceable in Department of Homeland Security v. Regents of the University of California. 

Justice Thomas wrote the majority opinion and held that the ACA granted broad discretion to the Health Resources and Services Administration (HRSA) when it states that health plans must provide women with “preventive care and screenings . . . as provided for in comprehensive guidelines supported by HRSA.”  The discretion to define what must be covered also provides the discretion to identify and create exemptions.  Thomas then made quick work of the alleged procedural defects finding there was no prejudicial error or requirement of “open mindedness” in the APA.  Therefore, the exemptions were properly promulgated.

Justice Ginsburg wrote a scathing dissent stating that a government estimate that between 70,500 and 126,400 women would immediately lose access to free contraception as a result of the ruling.  She expressed concerns over the erosion of women rights in favor of religious right stating,

“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. . . This court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets.

In her concurring opinion, Justice Kagan indicated the matter may not be completely decided yet as the states also challenged the exemption as being “arbitrary and capricious” but the lower courts did not decide that issue.  She stated, “This issue is now ready for resolution unaffected by today’s decision” and lower courts could still consider arguments that the administration didn’t engage in “reasoned decisionmaking,” when implementing the exemption, as required under federal law.  An agency can fail to apply reasoned decisionmaking by: not having a satisfactory explanation for its action; failing to draw a rationale connection between the problem it seeks to solve and the chosen solution; or when its thought process shows a clear error in judgment.  She stated,  “Assessed against that standard of reasonableness, the exemptions HRSA and the Departments issued give every appearance of coming up short.”

Thus, at least according to Justice Kagan, we may be looking at Little Sisters again! Hey, Hey, Hey!