Tragically, the Little Sisters of the Poor find themselves before the Supreme Court, yet again. The justices will hear oral arguments today in their case, Little Sisters of the Poor v. Commonwealth of Pennsylvania.

The Little Sisters’ first round of court battles began in 2013 when they contested the federal mandate requiring employers, including religious organizations like the Little Sisters, to provide contraceptives in their health insurance plans. The U.S. Department of Health and Human Services (HHS) issued this troubling rule in 2011 based on ambiguous statutory language in the Affordable Care Act. Their case eventually went to the Supreme Court.

In 2016, the Supreme Court sided with the Little Sisters in a unanimous decision, vacating the lower court judgments and remanding their case to the appropriate federal appellate court. The Supreme Court did not make a decision at the time on the merits of the case, and in particular, on their claims under the Religious Freedom Restoration Act – i.e, “…whether petitioners’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.” 

In October 2017, HHS issued a religious exemption that protected the Little Sisters and other faith-based organizations from the contraceptive mandate, apparently resolving the matter. That is, until the Commonwealth of Pennsylvania and several other states sued in federal court to deprive the Little Sisters of this exemption. 

The mission of the Little Sisters “is to offer the neediest elderly of every race and religion a home where they will be welcomed as Christ, cared for as family and accompanied with dignity until God calls them to himself.” They seek to undertake this mission in a manner consistent with the teachings of the Catholic Church. As the Little Sisters have learned over the past several years, their religious identity can be a huge problem when the government decides to enlist private organizations in the distribution of contraceptives via their health insurance plans. 

There are crucial legal questions in this case, and our friends at the Becket Fund for Religious Liberty continue to work assiduously to defend the Little Sisters and help the Court get this one right. But the underlying policy and cultural conditions that have led to these years of litigation must also be addressed. The idea that the federal government should be in the business of providing contraceptives deserves scrutiny in its own right. That it has sought to do so by enlisting private organizations is even more troubling. The problems produced by the HHS mandate have then been compounded by the rigid approach the government took in implementing it. The ensuing court battles in which the Little Sisters have been ensnared, of course, make this point emphatically. 

We certainly hope the Supreme Court rules to protect the religious freedom of the Little Sisters of the Poor, but it never should have come to this.

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Nathan A. Berkeley, RFI Communications Director and Research Coordinator