God bless the Supreme Court and the American people who vested in it the judicial power of the United States. And the Little Sisters of the Poor, who stood for their rights, and by proxy, the rights of all fervently religious persons in America. By a vote of seven to two, and after nearly a decade of litigation, the sages finally brushed aside the secular scolds and read the Sisters’ rights to the rest of the judiciary.
These Catholic nuns — at least for now — can finally go about what the court called their “noble work” without having to worry about any “mandate” to insure their employees for birth control. The court majority included not only the four conservative justices but also Chief Justice Roberts and two of its four liberals, Justices Breyer and Kagan. Justices Ginsburg and Sotomayor dissented.
From the day this case landed in court, we’ve viewed it as ridiculous. The idea that the Congress of the United States, or any administrative body, could require a group of Catholic nuns to provide birth control insurance control for their employees, well, such an idea was shocking — a mockery, even, of the nuns themselves and their religious scruples. If the Little Sisters weren’t safe, who could be?
No complaining employees came forward against the Little Sisters. This case was pursued by those holding a crabbed and bitter view of religious liberty. They acted in the face of early signals from the Supreme Court — this litigation has been going on for years — that they were heading up a legal dead end. They evinced a resentment of the prohibitions the Constitution lays on the power of the secular state to abridge religious rights.
As satisfying as it was to read, in Justice Thomas’ majority opinion, of the vindication of the Little Sisters, the court’s opinions also contained hints of trouble ahead. That’s because this ruling largely involves not the First Amendment but the details of what Congress did and didn’t do when it passed Obamacare. It left enough to the judgment of the regulatory bodies to save the Little Sisters for the moment.
Yet what might happen were the Senate to fall to the Democrats and the White House to go to Joe Biden? Would the Little Sisters still be safe? The only question the court faced in Little Sisters, the majority noted, “is what the plain language of the statute authorizes. And the plain language of the statute clearly allows the Departments to create the preventive care standards as well as the religious and moral exemptions.”
This was not a broad First Amendment case. This was a reading of what the detailed language of the Affordable Care Act allowed the Trump — or any — administration to write in the way of regulations. It’s unclear, at least to us, whether a future Congress could attempt to take away the freedoms that were just vouchsafed for the Little Sisters. And where the Little Sisters majority would end up.
Here is Justice Kagan complaining about the lack of clarity in the statute. “Sometimes when I squint, I read the law as giving HRSA” — the Health Resources and Services Administration — “discretion over all coverage issues: The agency gets to decide who needs to provide what services to women. At other times, I see the statute as putting the agency in charge of only the ‘what’ question, and not the ‘who.’”
Justice Kagan used to be dean of Harvard Law School. If she has to squint to see whether the Little Sisters deserve protection, what kind of barricade is there against a Congress or administration wholly controlled by the Democrats? She warns that the “moral exemption” granted the Little Sisters may not survive further litigation. And Justice Alito warns flat out that such litigation is sure to follow.
Both Pennsylvania and New Jersey, writes Justice Alito (who arose from New Jersey) are “all but certain” to start arguing that the government’s current rule is “flawed on yet another ground,” the Administrative Procedures Act. That will, he predicts, “prolong the legal battle in which the Little Sisters have now been engaged for seven years.” So God bless this honorable court, but keep your copy of the Constitution dry.