The closely watched “religious exemption” to the contraceptive mandate of the Affordable Care Act was validated by the Supreme Court in its last term in its decision of Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania.
The case was the latest to arise from the Patient Protection and Affordable Care Act (“ACA”), requiring covered employers to offer “a group health plan or group health insurance coverage” that provides “minimum essential coverage.” This coverage, the ACA states, must include “such additional preventive care and screenings … as provided for in comprehensive guidelines supported by the [Department of Health and Human Services’] Health Resources and Services Administration [(“HRSA”)].”
Following the ACA’s enactment, HRSA promulgated a guideline requiring health plans to cover “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and [related] patient education and counseling.” This guideline became popularly known as the “contraceptive mandate.” Before it went into effect, HRSA promulgated another rule (the “religious exemption”) that excused eligible religious organizations from the contraceptive mandate’s requirements.
In 2013, the Little Sisters of the Poor, an international congregation of Catholic nuns devoted to caring for the elderly poor, challenged the religious exemption on the grounds that, as originally drafted, it compelled them to violate their deeply held religious beliefs. The Sisters’ case went to the Supreme Court of the United States in 2016. Ultimately, the government admitted that it could provide contraceptive coverage to employees of religious organizations without requiring the organizations to do anything more than “contract for a plan that does not include coverage for some or all forms of contraception.” Zubik v. Burwell, 136 S. Ct. 1557, 1560, 194 L. Ed. 2d 696 (2016) (quotation omitted). The Sisters and the other religious organizations involved in the case confirmed that this would not cause them to violate their religious beliefs.
HRSA then modified the religious exemption in accordance with Zubik. It also substantially broadened the exemption to encompass any employer, including a for-profit or publically traded entity, that objects based on its sincerely held religious or moral beliefs. Soon after they were promulgated, the Commonwealth of Pennsylvania challenged the new rules, arguing that they were invalid because the APA only authorized HRSA to issue guidelines determining which preventative care and screening services must be provided, not to create exemptions from those requirements.
The case proceeded through the courts, and back to the Supreme Court. In a 7-2 opinion, the Court upheld the new regulation, holding that “the ACA gives HRSA broad discretion to define preventive care and screenings and to create the religious and moral exemptions.” Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2381 (2020). The Court explained that, while “Congress could have limited HRSA’s discretion in any number of ways,” instead it “enacted expansive language offer[ing] no indication whatever that the statute limits what HRSA can designate as preventive care and screenings or who must provide that coverage.” Id. at 2380 (quotations omitted) (alteration in original).
This decision was an important victory not only for the Little Sisters of the Poor, but particularly for small businesses whose owners have religious objections to federally-mandated health coverage. The decision does not mandate the religious exemption, but it certainly allows it. The case continues the Supreme Court’s expansion of freedom of religious rights for secular as well as religious originations.
Ferguson, Schetelich & Ballew maintains an active legal practice both in matters of business and religious/non-profit organizations, including matters of religious liberty.