“Game-changer”: Supreme Court helps the Little Sisters, though mandate stands

For now, the Little Sisters of the Poor and the numerous other faith-based agencies fighting the HHS contraceptive mandate will NOT be subject to federal penalties for refusing to be a party (via employer-provided health insurance) to provision of goods and services that violate their faith. A unanimous U.S. Supreme Court decision today made that clear, while sending thirteen challenges to the mandate back to lower courts.


“This is a game-changer,” said Mark Rienzi of the Becket Fund, representing the Little Sisters. “The Court has accepted the government’s concession that it can get drugs to people without using the Little Sisters. The Court has eliminated all of the bad decisions from the lower courts. And the Court has forbidden the government from fining the Little Sisters even though they are refusing to bow to the government’s will. It is only a matter of time before the lower courts make this victory permanent.”

I admire Mr. Rienzi’s optimism. I hope he’s right.

The eight Justices declined to rule on the legality of the mandate, which is a regulation that followed the federal Obamacare fiat that contraception for women is a basic “preventive” health service. This federal policy that women are basically broken and in need of fixing is left untouched by today’s Court action.

The federal government can go ahead and provide the coverage for contraceptives and abortion-inducing drugs and devices, under today’s Court action.

The bad news is that this means no majority could be mustered in the Court to reject the mandate altogether. That was the “decision” of the day: the mandate is still legal, despite numerous carve-outs and exemptions. From SCOTUSblog:

“The two issues that the Court had agreed to rule on, and then left hanging at least for now, were whether the [Affordable Care Act] mandate violates the federal Religious Freedom Restoration Act by requiring religious non-profits that object to contraceptives to notify the government of that position, and whether the move by the government to go ahead and arrange access to those benefits for those non-profits’ employees and students was the ‘least restrictive means’ to carry out the mandate.”

“A decision not to make a decision is still a decision.” Those words were drummed into my head by my public-policy professor more than three decades ago as I studied landmark Supreme Court cases. An important non-decision was made today: the mandate stands. So do at least thirteen challenges to it, though, and that’s good news.

(See earlier Leaven coverage at “Religious Liberty and the HHS/Obamacare mandate.”)