Andrew McCarthy: Supreme Court ruling upholding religious liberty is good news, but should go farther
It is certain that the litigation will continue
{{#rendered}} {{/rendered}}The Supreme Court on Wednesday upheld the Trump administration’s exemptions to mandatory contraception coverage under ObamaCare for employers with sincerely held objections. The ruling is welcome, particularly in its recognition that First Amendment religious liberty is not confined to identifiably religious organizations, such as churches, but to all Americans.
Regrettably, however, the justices stopped short of a definitive ruling that would end the litigation, which the Little Sisters of the Poor have had to pursue for seven long years.
That explains the seemingly lopsided 7-2 decision in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania.
{{#rendered}} {{/rendered}}SUPREME COURT RULES IN FAVOR OF LITTLE SISTERS OF THE POOR IN OBAMACARE CONTRACEPTION CASE
In his opinion for the court, Justice Clarence Thomas concluded that the Trump administration had the authority under the Affordable Care Act (ACA or ObamaCare) to issue the exemptions.
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Justice Thomas rejected the objecting states’ claims that the exemptions were not permitted under the ACA; and that, even if they were permitted, the administration had failed to comply with technical notice-and-commentary requirements of the Administrative Procedure Act.
{{#rendered}} {{/rendered}}Interestingly, such technical APA flaws were Chief Justice John Roberts’s rationale for joining the court’s four-justice left-wing bloc to invalidate the administration’s rescission of the Obama DACA decree – notwithstanding that the Obama administration had not complied with the APA in promulgating DACA.
The court’s ruling is fine as far as it goes. Nevertheless, Thomas reasoned that because the case could be decided based on the terms of the ObamaCare statute itself, the court need not reach the closely related question of whether the contraceptive mandate violated the Religious Freedom Restoration Act.
In Burwell v. Hobby Lobby Stores (2014), the court had held that the contraceptive mandate unduly burdened the free exercise rights of closely held corporations with sincerely held religious objections.
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Clearly, the narrowness of the ruling is what drew the concurrence of two of the liberal justices, Elena Kagan and Stephen Breyer.
In her concurrence (joined by Justice Breyer), Justice Kagan concedes that the ACA’s terms authorized the administration to exempt “certain employers” from contraceptive coverage. She contends, nevertheless, that the exemptions the Trump administration issued are unlikely to “survive administrative law’s demand for reasoned decisionmaking,” a question she encouraged the lower courts to explore.
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It is certain, then, that the litigation will continue. The objecting states (Pennsylvania and New Jersey) will now claim that the exemptions should be invalidated as “arbitrary and capricious” under the APA.
That inevitability prompted Justice Samuel Alito, joined by Justice Neil Gorsuch, to pen a concurrence that faults the court for failing to decide the RFRA issue. Justice Alito forcefully argues that the contraceptive mandate would unlawfully burden the free exercise rights of employers, such as the Little Sisters, who harbor sincerely held religious objections.
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