If we were the Supreme Court — a stretch to be sure — we would blow our constitutional stack over the district court ruling against the Little Sisters of the Poor. These Catholic nuns have several times been to the high court and won in cases centering on their right to practice their religion without undue interference from government — like requiring the nuns to pay for birth control coverage under their employees’ health insurance plans. Surely there is some power available in the law for the Supreme Court to enforce its own precedent — at least when it comes to hostile lower court judges — to prevent the Little Sisters, and others, from having to go back to court every time someone seeks to infringe on their constitutional rights. Yet at Philadelphia on Wednesday, a federal judge ruled against the nuns, requiring the Sisters to pay for their employees’ contraception.The ruling by Judge Wendy Beetlestone, a nominee of President Obama, is an effort to undo the Supreme Court’s ruling in 2016 protecting the Sisters from the Affordable Care Act’s requirement that employer health plans cover birth control and the so-called morning-after pill, which can be used in abortions. The judge’s ruling, which negates the Trump administration’s religious conscience rules for insurance plans, is national in scope.Judge Beetlestone’s ruling comes despite the Sisters’ previous court wins, our Bradley Cortright reports. “In 2016, the Supreme Court ruled that the federal government should,” Mr. Cortright reports, “arrive at an approach going forward that accommodates the petitioners’ religious beliefs.” Mr. Trump in 2018 set an exemption to the mandate, but the Sisters faced more challenges. The high court in 2020 ruled by seven to two in favor of the exemption.The Becket Fund’s Mark Rienzi, who represents the Little Sisters, condemns Wednesday’s ruling for backing “an out-of-control effort by Pennsylvania and New Jersey to attack the Little Sisters and religious liberty.” The two states are trying to impose “tens of millions of dollars in fines,” the Becket Fund reports, if the nuns fail “to either provide abortion and contraceptives in their healthcare plan.” The Little Sisters plan to appeal to the Third Circuit.Judge Beetlestone’s failure to appreciate the finer points of the First Amendment is all the more galling in contrast to a ruling by the Supreme Court involving a different group of nuns. In Diocese of Albany v. Harris the Nine rebuffed an attempt by New York State to force the nuns to pay for their employees’ abortions. The high court win for the Albany nuns, we noted, echoed “the high court victories scored by the Little Sisters of the Poor.”The wrangling over conscience exemptions comes amid a larger expansion of religious freedom under the Roberts Court. Rulings in recent years have, we noted, “strengthened the right of faith-based organizations and individuals to the ‘free exercise’ of their religion, guaranteed by the First Amendment.” The rulings have, too, had the effect of “scaling back discrimination by governments against religious people and groups.”In Harris, New York insisted that making nuns pay for abortions set “an appropriate balance” between the nuns’ rights of “free exercise” and the “interests” of their employees in “access to essential reproductive health care and equality in health care.” The Supreme Court’s ruling, sending the case back to the lower court, suggests that New York’s idea of “balance” failed to take proper cognizance of the meaning of the First Amendment. Doubtless some will say that the legal issues vary enough in the recent disputes between nuns and governments to warrant the ongoing judicial scrutiny of the charities. That kind of pettifoggery cuts no ice with these columns. The persistent pockets of hostility on the federal bench toward the religious freedom of groups like the Little Sisters seems to reflect a larger animus toward people of faith that invites action by the Supreme Court.
