Little Sisters And The Supreme Court

The Little Sisters of the Poor, a globally recognized Catholic order, joined Priests for Life, Geneva College, Southern Nazarene University, East Texas Baptist University, and representatives of several Roman Catholic organizations in the Supreme Court case of Zubik v. Burwell.

The case centers on the coverage of contraception under the Affordable Care Act (ACA). The Little Sisters morally object to participating whatsoever in providing contraception for women from the Food and Drug Administration (FDA). (The other challengers only object to covering “morning-after” pills and intrauterine devices.)

The ACA requires that contraception is within a range of preventive services that MUST be provided at no extra cost by an employer. However, Houses of worship (churches, synagogues, mosques, temples) and other religious institutions whose primary purpose is to evangelize are exempt from the contraceptive requirement.

This problem first arose in 2014 in the Supreme Court case of Burwell v. Hobby Lobby Stores. The owners of Hobby Lobby, a craft-chain, refused to provide contraceptive coverage to their employees, and cited their religious objections to contraception. The government’s solution to this problem was for religious for-profit groups (and non profits) to fill out a form and submit it to the government. This form then prompts a third party organization to provide the coverage instead of the employer.

The Little Sisters of the Poor believe that even the mere fact of filing out the form violates their moral code. They believe that filing the form makes them complicit in providing contraceptive care to their employees.

The Little Sisters of the Poor believe that the government is in violation of the Religious Freedom Restoration Act (RFRA) of 1993. RFRA “prohibits the government from imposing a substantial burden on religious exercise unless doing so is the least restrictive means of furthering a compelling government interest”.

Lawyers for the plaintiffs argued that their clients should receive the same exemption the law gives to Houses of Worship (as well as grandfathered plans, and some small businesses). Paul Clement, a lawyer for The Little Sisters of the Poor elaborated on this:

“Truly exempt organizations do not need to comply with the mandate at all… they need not execute or deliver paperwork empowering anyone to use their plan infrastructure to provide contraceptive coverage, nor even notify the government of their desire for an exemption.”

The progressive branch of the Supreme Court took issue with this push for exemption. Justice Stephen Breyer, brought up the fact that in theory, many religious groups could find a moral issue in being “complicit” when following a broad swath of U.S. law.

Justice Breyer pushed Noel Francisco, a lawyer for the second group of plaintiffs, on whether a federal program flowing with haphazard exemptions could violate RFRA; when Noel Francisco responded in the affirmative Breyer said “O.K…. I’ve just described to you the United States tax code.”

Justice Sonia Sotomayor stressed the importance of making coverage easily available.

“When contraceptives are provided to women in a seamless way… the number of unintended pregnancies dramatically falls, as does the number of abortions,” Justice Sotomayor said.

The conservative branch of the court cited a concern for religious freedom. Justice Samuel A. Alito Jr. referred to the government’s approach to the issue as “an unprecedented threat to religious liberty in this country”.

Chief Justice John Roberts agreed with the defense when citing that the federal government was, in a sense, “hijacking” the insurance plans of the religious’ groups. Justice Roberts along with Justice Alito, and Justice Kennedy expressed sympathy for the religious and moral conundrum that The Little Sisters, and the other religious groups had in providing contraceptive care to their employees.

Justice Kennedy, the crucial swing vote of the court, did cite a problematic issue with the defense. He was concerned that there was the possibility that any group could potentially ask for the same religious exemption as Houses of Worship. “It’s going to be very difficult for this court to write an opinion which says that once you have a church organization, you have to treat a religious university the same… I just find that very difficult to write.”

The case has the potential to be a 4–4 tie. If this occurs the prior ruling in four appellate court cases will resort back to the original ruling (which was in favor of the Obama administration).

The court could also defer the case for next term, when a new justice is nominated. President Barrack Obama recently nominated Judge Merrik Garland to the Supreme Court. However, Senate Republicans have refused to hold hearings until after a new president is elected.

A decision in the case is expected sometime in June.


Farias, Cristian.“Supreme Court Sharply Conflicted on Whether Religious Freedom Trumps Contraception Access.” The Huffington Post, March 23, 2016. (accessed April 3, 2016).

Fritze, John. “Little Sisters argue contraception case at Supreme Court.” The Baltimore Sun, March 23, 2016. (accessed April 3, 2016).

Green, Emma. “The Little Sisters of the Poor are Headed to the Supreme Court.” The Atlantic, November 6, 2015. (accessed April 3, 2016).

Liptak, Adam. “Justices Seem Split in Case on Birth Control Mandate,” The New York Times, March 23, 2016. (accessed April 3, 2016).

Vogue, Ariane De. “Supreme Court hears challenge to Obamacare contraceptive mandate.” (accessed April 3, 2016)