Contraceptive Rights v. The Little Sisters of the Poor, Round 2

Kevin C. Walsh, professor of law at the University of Richmond, writes that The Little Sisters of the Poor are headed back to the Supreme Court, where they will win a victory that “could end up benefiting religious freedom in the future.” Walsh says the litigation may yield a significant precedent for interpreting the federal statutory law of religious freedom set forth in the Religious Freedom Restoration Act (RFRA). The last time the Little Sisters went to the Supreme Court they were plaintiffs, seeking relief from the Affordable Care Act’s rule that all health plans must include contraceptive drugs and devices in their benefits package. This time, they are defendants. The plaintiffs are states seeking to invalidate the 2017 federal rule that exempts their plan from including contraceptives. The key question in the case is whether the Third Circuit panel correctly ruled that the federal government had no statutory authority to give the Little Sisters and other religious employers the exemption. The panel reasoned that nothing Congress has enacted into law authorized the agencies to exempt some employers from the requirement to cover contraceptive drugs and devices.