In May 2016, the Supreme Court unanimously overturned lower court rulings against the Little Sisters, ordered the government not to impose $70 million in fines against the Little Sisters, and said the lower courts should provide the government an opportunity “to arrive at an approach going forward that accommodates the petitioners' religious beliefs.”  

On November 7, 2018 the federal government did what it should have done years ago: it admitted that it was unlawful to penalize the Little Sisters of the Poor and other religious groups for following their faith. The government issued a new rule with an exemption that protects religious ministries. The rule complies with the Supreme Court 2016 ruling and a Presidential Executive Order. It also confirms what Becket has argued all along—that the government has many ways to provide services to women who want them, as well as protect the Little Sisters.  

Despite the new rule and a Supreme Court victory, the Little Sisters’ fight is not over. Shortly after the new rule was issued, several states, including California and Pennsylvania, sued the federal government to take away the Little Sisters’ religious exemption. These states admit they have many programs to provide contraceptives to women who want them, and several of the states either have no contraceptive coverage requirement at all or provide broad religious exemptions, just like the new rule. Yet the states claim that non-profits, including the Little Sisters, must be forced to comply with the federal mandate or pay tens of millions of dollars of government fines. 

In November 2017, Becket intervened on behalf of the Little Sisters of the Poor in California and Pennsylvania. On July 12, 2019, the Third Circuit ruled against the Little Sisters. On October 1, 2019, the Little Sisters of the Poor appealed to the Supreme Court, which agreed to take up the case in January 17, 2020. Oral argument will take place on April 29, 2020.

The new federal rule provides an easy solution that protects the Little Sisters’ and other religious non-profits’ religious freedom and allows the government to offer these services to women who want them. Rather than trying to force religious plans to offer services, the federal government could simply ask insurers to offer independent coverage to any women who want it, or the government could provide coverage through the ACA healthcare exchange to any employees who want the services but can’t get them through employer plans. Giving all women access to contraception through one of the many alternatives would be a simpler and fairer way for the government to provide these services to women in protected religious plans, not to mention the tens of millions of Americans in other government and corporate plans the government has already exempted from the mandate.  

At the state level, this fight is even more nonsensical. The states of California and Pennsylvania already have and use programs to provide contraceptives to women who want them. Neither state objected to the Obama Administration’s broad secular exemptions, and neither state has been able to identify a single person who had contraceptive coverage but will now lose it because of the new rule. California even has its own contraceptive mandate already—one that does not apply to the Little Sisters of the Poor.  

What it all adds up to is a fight on political and ideological grounds. The Little Sisters are not trying to stop the government from providing these services, but ask that they not be forced to provide them (especially since the government has already refused to ensure that those free services are provided to one in three Americans).  

The 17 states in this lawsuit should comply with the new federal rule. Doing so would protect the religious freedom of non-profits nationwide, including the Little Sisters, who never wanted this fight and just want to get back to caring for the elderly in need. 

The Little Sisters of the Poor have dedicated their lives to living with and caring for the elderly poor. They focus on service, not advocacy or policy, and, in this case, they’ve exhausted every option possible before going to court.

Learn more about the Little Sisters of the Poor and read their op-eds explaining their case in USA Today, The San Francisco Chronicle, and The New York Times.