Five Things You Should Know about the Little Sisters of the Poor Case

On Nov. 6, 2015, the U.S. Supreme Court decided to hear the appeals of Little Sisters of the Poor and other religious nonprofit organizations, concerning their religious conscience challenges to the U.S. Department of Health and Human Services (HHS) mandate. The oral arguments will be sometime in March 2016, with a decision ultimately in May or June.

Here's what you need to know about these cases:

1. This Case Is Similar To The 2014 Hobby Lobby And Conestoga Wood Specialties Cases In Some Respects.

The general issue ― then and now ― is whether a regulation created by HHS to implement ObamaCare violates the Religious Freedom Restoration Act (RFRA) by forcing employers to provide possible abortion-causing drugs in company health plans. The Supreme Court said "yes" in the Hobby Lobby and Conestoga Wood Specialties cases.

2. This Case Is Different Than Hobby Lobby And Conestoga Wood Specialties In One Important Aspect.

HHS, in its original regulation (it's since been slightly modified), created three classes of conscience protection based on the type of employer: (1) Churches were granted a complete exemption from the mandate; (2) "for-profit" employers, such as Hobby Lobby, were granted no religious conscience exemption from the mandate, even though they ran their businesses based on religious principles; and (3) religious nonprofit organizations (e.g., ministries, denominations, religious schools, etc., including Little Sisters of the Poor, Geneva College and Priests for Life) were classified in a third category whereby their beliefs would be "accommodated" up to a certain point. It is this third class of employers who are now suing the federal government, claiming that the "accommodation" process itself places an unacceptable burden on their religious exercise.

3. How The "Accommodation" Works.

The "accommodation" process for that third class of employers has undergone some changes since it was first established by HHS. At this point, a religious nonprofit, such as Little Sisters of the Poor, which objects to being forced to provide possible abortion-causing drugs in its health plan, can sign the appropriate government form or simply inform HHS of its opposition. At that point, HHS informs the third party insurer for the nonprofit organization (or the plan administrator, if they are a self-funded health plan) that they (the insurer or plan administrator) must provide the possible abortifacients to the nonprofit organizations' employees at no cost. Little Sisters of the Poor and dozens of other religious nonprofits don't agree with HHS's position that the "accommodation" process alleviates any burden on their religious exercise or conscience and resolves their complicity in an immoral act. Nevertheless, several federal appeals courts have agreed with the federal government, while one appeals court sided with the nonprofits.

The Supreme Court accepted the appeals of several of these cases to resolve this split of opinion between the circuit courts.

4. Will Little Sisters Of The Poor Win?

Although this question is hard to answer in any pending litigation, we can be encouraged by what the Supreme Court did in the Hobby Lobby case, as it appears to favor the position that Little Sisters of the Poor, and dozens of other non-profits, are taking. Similar to the Hobby Lobby decision, this case boils down to a couple key questions the Court will have to answer, and those answers will determine whether Little Sisters of the Poor wins:

a.      Is the Court competent to decide whether a sincere religious belief is "correct?"

The short answer should be "no."

The Hobby Lobby opinion emphasized a long-standing principle of judicial review: Courts are ill-equipped to decide, and, therefore, should not decide, matters of theology and religious conscience. However, it should accept the sincere statements of belief of the religious claimants that come before them. As Justice Alito wrote in the majority opinion:

"Similarly, in these cases the Hahns and Greens and their companies sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our 'narrow function . . . in this context is to determine' whether the line drawn reflects 'an honest conviction,' . . . and there is no dispute that it does." (Emphasis added)

The government in this case attempts to avoid the question (and differentiate this case from Hobby Lobby) by arguing that the "accommodation" process removes any moral complicity by religious nonprofits. However, Little Sisters of the Poor and several dozen other religious nonprofits strongly disagree. The five-justice Supreme Court majority that decided Hobby Lobby is more likely to reject the government's argument than accept it, but the loss of even one vote from that majority on this question will change the outcome of the case. One of those five, Justice Anthony Kennedy, is once again the vote to watch on this issue.

b.     Is there a less burdensome (to religious belief) way for the government to achieve its goal (i.e., free access to contraceptives)?

The answer here should be "yes."

If the Supreme Court rejects the government's argument that the "accommodation" removes the moral dilemma for nonprofit organizations, then the deciding issue will probably come down to the same thing the Court examined in Hobby Lobby: Is there a less intrusive, less burdensome way for the government to achieve its objective than to force religious employers to violate their conscience? There are numerous ways the government can make contraception freely available that do not involve employers.

5. Hobby Lobby And Other "For-Profit" Employers Are Depending On The Success Of Little Sisters Of The Poor's Appeal.

"For-profit" employers will be watching this case with keen interest. Many people do not realize the 2014 Hobby Lobby victory did not exempt for-profit businesses from the HHS mandate. After the Court ruling, HHS moved for-profit companies like Hobby Lobby into the "accommodation" category, which puts them in the same moral dilemma as Little Sisters of the Poor. Now, for- and nonprofit entities have three unacceptable choices: i) Sign the piece of paper, which triggers the provision of possible abortifacients to their employees; ii) refuse to follow the "accommodation" process and pay devastating fines; or iii) close their doors.

So the victory Hobby Lobby and Conestoga Wood Specialties won on behalf of family owned and other small, for-profit companies in 2014, was taken away from them with the stroke of an HHS pen, and their ultimate victory depends on the success of Little Sisters of the Poor's appeal now.

And that's why this case is doubly important for the cause of religious conscience.