Will the Legal Bullying of the Little Sisters of the Poor Ever End?

​For more than a decade, the Little Sisters of the Poor – a community of Catholic nuns who devote their lives to caring for the elderly poor – have been trapped in a never-ending nightmare of litigation. Their “crime”? After Congress enacted the Affordable Care Act (ACA), the Little Sisters declined to provide coverage for drugs like the week-after pill in their health plan because doing so would violate their core religious beliefs.
 
Pennsylvania Already Slapped Down by the Supreme Court

In 2017, the U.S. Department of Health and Human Services (HHS) issued a new rule with a broad religious exemption to the ACA’s contraceptive mandate. The government admitted it had broken the law when it previously tried to force faith-based nonprofits into compliance. That acknowledgment should have closed the book on this case.
 
Not satisfied to leave these nuns alone, Pennsylvania immediately sued the federal government to remove the Little Sisters’ exemption. Pennsylvania asked a federal judge to force the Little Sisters to comply with a federal mandate or face tens of millions of dollars in fines.
 
In 2019, after years of litigation, the Little Sisters asked the U.S. Supreme Court to protect them. In a 7-2 decision, the Little Sisters won. Justice Clarence Thomas, writing for the Court, captured the heart of the matter:
 
“For over 150 years, the Little Sisters have engaged in faithful service and sacrifice, motivated by a religious calling… But [since the enactment of the contraceptive mandate], they … have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs.”
 
The Supreme Court upheld the federal government’s authority to issue a religious exemption to the contraceptive mandate under the text of the ACA. It has yet to clarify how the Religious Freedom Restoration Act (RFRA), which prohibits government from substantially burdening religious exercise, would protect religious groups like the Little Sisters.
 
Pennsylvania Refuses to Throw in the Towel

Despite the Supreme Court’s rebuke, Pennsylvania – joined by more than a dozen states – kept pushing in lower courts to undo the Little Sisters’ protections. On Aug. 13, in a ruling against a Trump-era conscience rule, a federal district court in Philadelphia once again sided with Pennsylvania.
 
The Little Sisters are now again having to appeal to the Third Circuit. A case that should have ended years ago, central to protecting the free exercise rights of all Americans, thus continues on.
 
In the hands of state regulators, a narrow exemption for nuns caring for the elderly poor is apparently worthy of a multistate lawsuit. That alone speaks volumes.
 
The Stakes for Minority Faiths

Courts have long recognized a recurring problem – when judges and regulators do not understand a particular faith, they often undervalue the importance of its practices. That risk is highest for minority religions, which often lack resources, political power, and popular support. These communities depend heavily on statutory protections like RFRA, which is designed to operate:
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• As a shield – allowing religious believers to defend themselves in court

 

• But also as a sword – empowering the government to proactively avoid violating conscience

If agencies are forbidden from issuing exemptions, religious minorities will be forced to wait until their beliefs are already compromised before seeking relief. By then, the harm is already done.
 
That is what makes the continuing campaign against the Little Sisters so troubling. Even after a decisive 7–2 Supreme Court victory, state governments continue trying to force a group of nuns to violate their vows or face crushing fines.
 
We expect that the Little Sisters will once again prevail. But this case serves as a warning about the fragility of religious liberty in the face of persistent official hostility from many states.

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