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Little Sisters Bring Trump Birth Control Rule Back to SCOTUS (1)

Oct. 2, 2019, 2:22 PMUpdated: Oct. 2, 2019, 2:43 PM

The Little Sisters of the Poor wants the U.S. Supreme Court to review a decision blocking a Trump administration rule that allows religious objectors to refuse to pay for birth control.

The Religious Freedom Restoration Act required—or at least permitted—the government to adopt a religious exemption to an Obamacare rule requiring employer health plans to cover contraceptive care, the Little Sisters of the Poor Saints Peter and Paul Home told the high court Oct. 1.

The order of Catholic nuns is asking the court to review a decision by the U.S. Court of Appeals for the Third Circuit that affirmed a lower court’s nationwide injunction against the opt-out rule. The order will be in effect while the rule’s validity is being litigated.

Rules implementing the Affordable Care Act require large employers to provide employee health plans. The plans must cover certain essential services, including contraceptive care. Churches are exempt from the contraceptive mandate, but religious-based organizations aren’t.

This presents a conundrum for groups like the Little Sisters. They can supply the required coverage, risk a fine by choosing not to do so, or seek an accommodation allowing them to provide noncompliant plans. The first and third options would force them to violate sincerely held religious beliefs, while the second would impose financial hardship on them, the Little Sisters said.

The Trump administration tried to fix the problem by adopting a rule expressly allowing religious organizations to opt out of providing the coverage. Over 20 states sued the government in federal courts to overturn the rule.

The Third Circuit’s decision is wrong because the administration was authorized to comply with RFRA by lifting the burden on religious exercise imposed by the contraceptive mandate, the Little Sisters said.

The appeals court’s conclusion that the accommodation didn’t substantially burden religious exercise, moreover, resurrected an accommodation the Supreme Court and multiple other federal courts have deemed suspect, the Little Sisters said.

Parallel cases are pending in California and Massachusetts. The Ninth Circuit heard oral argument in the California case June 6. It previously upheld an order blocking enforcement of a non-final version of the rule.

The Becket Fund for Religious Liberty and Kirkland & Ellis LLP represent the Little Sisters.

The case is The Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, U.S., No. 19-431, petition for review filed 10/1/19.

(Revised to add docket number.)

To contact the reporter on this story: Mary Anne Pazanowski in Washington at

To contact the editors responsible for this story: Jo-el J. Meyer at; Patrick L. Gregory at