From Hobby Lobby to the Little Sisters, the long fight over one mandate

Most laws get one trip to the Supreme Court, if they get any. Occasionally a statute gets two. It is very unusual for a single regulation to produce three rounds of high-court fighting over ten years, each time with the same basic grievance and each time with the government offering a new way to say, in effect, "Here, we fixed it." The rule I'm talking about is the contraceptive coverage requirement in the Affordable Care Act, and the fight over it is one of the best case studies we have of what happens when Washington writes a broad mandate and then discovers it has stepped on somebody's conscience.

I want to be careful about what this post is and is not. It is not about whether contraception is good or bad, and it makes no medical claims. It is about a legal question: when the government requires employers to provide a particular insurance benefit, and some employers object on religious grounds to being involved in providing it, what does the law require the government to do? That is a question about the Religious Freedom Restoration Act of 1993, which I describe in How 97 senators and a voice vote undid a Supreme Court decision, and about how far the government has to go to accommodate people whose beliefs it does not share.

Why three rounds? Because the heart of the dispute, as the employers saw it, was not the cost. It was complicity. If you believe a certain act is morally wrong, then being required to arrange, pay for, or trigger that act is, in your eyes, a burden on your conscience even if somebody else does the final step. Each time the government offered a workaround, the objectors argued that the workaround still made them part of the chain. You do not have to agree with them to see that this was their argument, and the Court treated it seriously.

Here is the timeline, with dates.

March 23, 2010: the Affordable Care Act becomes law

President Obama signed the Patient Protection and Affordable Care Act. Among its provisions was a requirement that most group health plans cover certain preventive services for women without cost-sharing. The statute did not list which services. It left that to a federal agency, the Health Resources and Services Administration, to define.

Why it mattered: The details of the mandate were delegated to agencies. That is a pattern you see again and again in the ACA story, and it is why the later fights were as much about administrative law as about religion. The text of the statute never mentioned contraception.

August 2011: the guidelines and the narrow exemption

In 2011 the agency issued guidelines based on recommendations from the Institute of Medicine, and they included coverage of FDA-approved contraceptive methods. In August 2011, the departments of Health and Human Services, Labor and Treasury issued rules with an exemption for a narrow category of "religious employers," defined by reference to a section of the tax code, essentially churches and their integrated auxiliaries, and organizations whose purpose is to inculcate religious values and that primarily employ and serve people of the same faith.

Why it mattered: The definition of a religious employer was narrow. A Catholic hospital, a religious university, a charity run by an order of nuns or a Christian publishing house might not fit. The line between a house of worship and a faith-based institution was the wedge for everything that followed.

February 2012 to 2013: the "accommodation"

In February 2012 the administration announced a compromise. Religious nonprofits that did not qualify for the exemption would not have to pay for or provide the coverage directly. Instead, the insurer or a third-party administrator would provide it, separately and at no charge to the employer. In 2013 the final rules put this into place, and an eligible nonprofit could get the accommodation by filling out a self-certification form, which went to the insurer or administrator and which triggered the obligation to provide the coverage.

Why it mattered: This was the government's first answer to the complicity concern. For some groups it worked. For others the form was the problem: by signing it, they said, they were the trigger that set the whole process in motion. The exemption for churches was in the rule from the start, but the accommodation left the nonprofits with a form to sign.

June 30, 2014: Burwell v. Hobby Lobby

The first Supreme Court round came from businesses, not nonprofits. Hobby Lobby Stores, owned by the Green family, a chain of craft stores, and Conestoga Wood Specialties, a cabinet maker owned by a Mennonite family named Hahn, were closely held, for-profit corporations. The owners said they would not provide coverage for certain contraceptive methods that they believed could end a human life after conception. The government's rule would have fined them heavily if they refused.

The Court ruled 5-4, in an opinion by Justice Samuel Alito, that RFRA applied to closely held for-profit corporations, that the mandate imposed a substantial burden on the owners' exercise of religion, and that the government had not used the least restrictive means to further its interest. The Court pointed out that the government had already created an accommodation for religious nonprofits, and that it could use the same approach for these companies. Justice Ruth Bader Ginsburg dissented, joined by Justice Sotomayor and, in large part, by Justices Breyer and Kagan, and warned that the decision could open the door to claims by companies about all sorts of other benefits.

Why it mattered: It was the first time the Court held that a for-profit business can invoke RFRA. The majority limited the holding, saying it concerned the contraceptive mandate and closely held companies. The dissenters feared that the reasoning would spread. The legal question of whether "persons" in RFRA includes corporations is a real question, and the Court answered it yes, noting that the Dictionary Act defines "person" to include corporations.

May 16, 2016: Zubik v. Burwell

The Little Sisters of the Poor, a Catholic order of religious women who care for the elderly poor, had sued in Colorado in the fall of 2013. In late December 2013, Justice Sonia Sotomayor issued a temporary order protecting them from enforcement of the mandate while the case went forward, and in January 2014 the full Court issued an order allowing them to avoid the form while their case was pending, by notifying the government of their objection in writing. In July 2014, three days after Hobby Lobby, the Court gave similar relief to Wheaton College, an evangelical college in Illinois, in an unsigned order. The Court was signaling that the form itself was a live problem.

By 2016 the circuits had split, and the Supreme Court took seven consolidated cases from nonprofits, including the Little Sisters, under the name Zubik v. Burwell. In the argument, in March, the justices asked a notable question: whether a plan could be devised that gave the employees the coverage without the employers being involved. After the oral argument the Court asked the parties for supplemental briefs on that point. The Court, eight members strong after the death of Justice Antonin Scalia in February, issued an unsigned opinion on May 16 that did not decide the merits. It sent the cases back to the lower courts so that the parties could try to reach an approach that accommodated the employers' objection and still gave the women coverage.

Why it mattered: It was a unanimous order, but it settled nothing, though it put the Little Sisters on the road that ended in the Court four years later. The government and the objectors had effectively been told to work it out. They did not.

2017 to 2019: new rules, and the lower courts block them

In May 2017 President Trump issued an executive order on religious liberty directing agencies to consider amending the regulations. In October 2017 the departments issued interim final rules expanding the exemption for employers with religious objections and creating a new exemption for certain employers with moral objections. In November 2018 they finalized the rules. Pennsylvania and other states sued, arguing that the new exemptions were not authorized by the ACA and that the agencies had skipped required procedure. A federal judge in Philadelphia blocked the interim rules in December 2017 and, after the final rules were issued, blocked them again in January 2019 on a nationwide basis. The Third Circuit affirmed the injunction in 2019.

Why it mattered: Instead of waiting for Congress, the executive branch changed the regulation, and the fight moved from religion to administrative law. The question was whether the statute gave the agencies authority to create exemptions and whether the rules had been properly adopted. The nationwide injunction followed the same pattern I discuss in One Judge, One Injunction, One Country, and How Federal Courts Block Policy.

July 8, 2020: Little Sisters of the Poor v. Pennsylvania

The Supreme Court ruled 7-2, in an opinion by Justice Clarence Thomas, that the agencies had the statutory authority to create the religious and moral exemptions. The ACA, the Court said, gave the agencies broad discretion to decide what preventive services would be covered and to decide on exemptions, and the agencies could take RFRA into account in doing so. The Court also rejected the challenge to how the final rules were adopted. Justice Ginsburg, joined by Justice Sotomayor, dissented. Justices Kagan and Breyer concurred in the judgment, expressing concerns about whether the rules would hold up on a different challenge.

Why it mattered: The Court did not say that every exemption must be granted. It said that the government may grant them. The case went back to the lower courts for other questions, and the Court did not rule on the policy merits. For the Little Sisters, the ruling was the end of their long road: they could keep serving the elderly poor without being made to sign the form or pay a fine.

The strongest objection

The best objection to all of this is that the burden on the employers is thin, since the employees get the coverage from another source, and the exemptions leave women without a benefit that Congress meant them to have. Ginsburg's dissent in Hobby Lobby made that case: she wrote that the Court's decision was one of startling breadth, and that it shifted the cost of the owners' beliefs to employees who do not share them. That is a concern about fairness to third parties, and it is one I take seriously.

My answer is in numbered points.

1. The statute asked the question. RFRA, passed 97-3 in 1993, requires the government to show that it used the least restrictive means. In both Hobby Lobby and Zubik the government already had an accommodation that provided coverage another way, which tells you the government itself thought a less restrictive path existed.
2. The employer's claim is about conscience, not about the employee's choices. An employer who objects is not telling anyone what to do with their own money or their own life. He's asking not to be the one who arranges it.
3. The remedy for a gap is a different delivery channel. If a benefit cannot be delivered through a particular employer, it can be delivered through another channel, and Congress or an agency can build one. What the government cannot do is insist that a religious order sign the form.
4. Executive overreach cuts both ways. The 2020 decision turned on the statute giving the agencies room. A future administration can narrow the exemptions if the law allows it, which is a feature of the system and not a bug.

Those who want to dig into where the line falls when a religious institution is the employer should read why the government cannot tell a church who its ministers are, and for the next question about conscience and taxpayer funds, The Hyde Amendment rider and the conscience laws that keep taxpayers out. The broader question of federal strings on money is covered in NFIB v. Sebelius Lost the Mandate Fight but Won a Limit on Federal Strings.

The verdict

Here is my verdict, as plainly as I can state it. When the government writes a rule that forces a nun, a craft-store owner or a cabinetmaker to take part in something their faith forbids, and a less burdensome way exists to achieve the government's goal, the government has to take the less burdensome way. That is the law Congress wrote in 1993. It took three trips to the Supreme Court and a change of administration to get there, and that tells you something about how hard it is for Washington to take no for an answer.

The bottom line

• One rule produced three rounds because every accommodation still left religious employers feeling complicit: Hobby Lobby (2014), Zubik (2016) and Little Sisters (2020).
• Hobby Lobby (5-4) applied RFRA to closely held for-profit corporations. Zubik (unanimous) sent the cases back. Little Sisters (7-2) held that agencies had the authority to create exemptions.
• The 2020 ruling says exemptions are allowed, not required, so the rules can still change with a future administration or Congress.
• If your employer or your own organization has a conscience objection to a federal rule, document it in writing and ask a religious-liberty lawyer about RFRA.
• Write to your member of Congress about a statute that spells out the exemption, rather than leaving it to agencies to rewrite every few years.