The U.S. Supreme Court tiptoed its way through a jungle of administrative law to hand another victory to the Little Sisters of the Poor. Some people just can’t stop insisting that nuns help provide birth control. In this case, it was the state of Pennsylvania, which deservedly lost on a 7-2 vote.
Or, in the words of a headline from CNBC (a business network, mind you): “Supreme Court says Trump administration can let religious employers deny birth control coverage under Obamacare.”
Let me fix that for them: “Supreme Court tells Pennsylvania to get its hands out of nuns’ pockets,” or “Supreme Court recognizes religious liberty interests of Catholic women,” or “Supreme Court says government cannot impose ruinous fines on Little Sisters of the Poor,” or even “Supreme Court lets employers stay out of employees’ private decisions involving sex.”
CNBC, and other media outlets with the same approach, had lots of options. They went with “deny birth control.” Posted with this photo is a screenshot of the Facebook preview of the CNBC story, but I’m not going to provide a direct link. I’m not going to share lousy coverage.
Here’s a news flash that CNBC may or may not have had time to notice: the decision in Little Sisters of the Poor v. Pennsylvania was about as narrow as it could be. So was Hobby Lobby, come to think of it, another prominent anti-mandate decision.
Broadly, the Obamacare contraceptive mandate requires that contraception be a covered expense under health insurance. Employers with religious objections to helping anyone procure contraception have had to fight to escape the mandate, even though such employers care enough about their employees to offer health insurance as a benefit in the first place. The Hobby Lobby decision protected privately-held companies. Other entities, like the Little Sisters, have had to wage their own fight.
In the most recent Little Sisters case, the Court hewed closely to the administrative objections raised by Pennsylvania: did the federal government have a right to grant the Little Sisters an “accommodation” – i.e. an exemption – from the Obamacare contraceptive mandate? The Supreme Court has spoken: yes, the federal government does have such a right, under laws and regulations currently in effect.
Of course, if Congress changes those laws and regulations, the Little Sisters will be right back in court.
I would have loved to see a broad and uncompromising affirmation of the First Amendment rights of people who on religious grounds want nothing to do with anyone’s contraception. The Court chose to be less sweeping, but a weakly-founded win is still a win.
The federal government’s ability to issue “accommodations” is intact. That’s something to tolerate, not celebrate.
Religious freedom deserves constitutional protection, not little carve-outs. I’ll save my wholehearted celebration for the day when the First Amendment trumps the contraceptive mandate decisively, beyond the whims and opinions of legislators, bureaucrats, and even the headline writers at CNBC.
Text of Little Sisters of the Poor v. Pennsylvania
Ellen Kolb 