On November 6, the Supreme Court announced that it will hear another case against Obamacare, making this the fourth legal challenge to the health care law on the Supreme Court level since the law was passed. This time, the Court consolidated seven cases brought by a number of religious organizations, including the Little Sisters of the Poor. The Little Sisters et al. argue that Obamacare's requirement that employers provide insurance coverage for contraceptives and abortion drugs is a violation of their constitutional right to free exercise of religion as protected by the federal Religious Freedom Restoration Act (RFRA). Plaintiffs face severe and ruinous fines if they do not comply with Obamacare's mandate, even if compliance violates their religious beliefs.
The Little Sisters of the Poor is an international Roman Catholic ministry of religious sisters that provides free shelter and care for impoverished elderly in 31 countries. In the U.S. alone, the Little Sisters have 30 homes for the aged and dying. Other plaintiffs in the consolidated case include Priests for Life, the Archdiocese of Washington, and a number of Christian universities and colleges.
Why is this case important and why does it matter? The Supreme Court, after all, ruled on a similar RFRA claim against Obamacare in Burwell v. Hobby Lobby Stores , Inc. last year. Is this just a repeat? What are the differences between the two cases?
The most significant difference is that, in the Little Sisters case, the Supreme Court will finally take up a key constitutional question that it did not touch in Hobby Lobby: Under the RFRA, does the government have a "compelling interest" in ensuring that American employers pay full coverage for contraception and abortion drugs for their employees?
The RFRA has three components. (1) It prohibits the government from placing a "substantial burden" on the exercise of religious freedom unless (2) such burden is the "least restrictive means possible" and (3) it achieves a "compelling government interest."
This "compelling interest" test balances the government interest that is served by a law against an individual's constitutional right to be free of that law. The balancing test in this case is:
In Hobby Lobby, the Supreme Court did not reach the "compelling interest" test of the RFRA, and was able to make a decision against Obamacare based on just the first two RFRA components. It ruled that (1) the ruinous fines imposed by the contraceptive mandate on Hobby Lobby did indeed constitute a "substantial burden" on religious freedom; and that (2) the government has other readily-available means to provide contraceptive-abortifacients to women, making the contraceptive mandate not the "least restrictive means possible."
In August 2011, a "religious employer exemption" to the contraceptive mandate was created. However, only churches and other houses of worship qualified for the exemption. In February 2013, the Administration issued an "accommodation" for non-profit religious organizations who did not qualify for the exemption (such as the Little Sisters).
The "accommodation" purports to shift the burden of paying for contraceptive coverage from the employer to the insurance company itself. The Little Sisters argue that this does not solve the problem - they would still remain the primary point of access to contraception and abortion drugs, and would be morally complicit in their use. In addition, shifting the payment to insurance companies will cause premiums to increase. These premiums will still be paid directly by the Little Sisters, making the shift in payment merely nominal.
The Obama Administration claims that the accommodation adequately protects the Little Sisters' right to religious liberty. The Little Sisters argue the accommodation is ineffective, and that the contraceptive mandate imposes a "substantial burden" on their free exercise of religion. As the accommodation dealt only with non-profit religious organizations it was not at issue in Hobby Lobby which dealt with for-profit, closely-held corporations.
The Little Sisters case presents significant constitutional questions that the Court has yet to address. As those questions are considered, it is important to remember that the right to free exercise of religion is specifically and expressly written in our constitution, unlike the court-instituted "rights" to contraception and abortion, which appear nowhere in the text. If the Court decides that the government's interest in free contraception and abortion drugs for all is more compelling than the fundamental rights enumerated in the constitution, we can certainly expect future policies and government initiatives that promote this interest over the most basic American freedoms.