Little Sisters is perfect vehicle for resolving RFRA dispute

The Little Sisters of the Poor Home for the Aged, Denver, Colorado (Little Sisters) filed a reply brief in its challenge to the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) contraceptive mandate and accommodation before the Supreme Court. The petition identifies Little Sisters v. Burwell as “an ideal vehicle to resolve the [Religious Freedom Restoration Act (RFRA) (42 U.S.C. §2000bb)] question that HHS now concedes warrants this court’s review.”


Under Section 1001 of the ACA, employer-sponsored health insurance plans offered by employers with 50 employees or more must meet certain coverage requirements. In particular, those plans must cover all FDA-approved contraceptive methods without copays or deductibles. While some religious employers are exempt from those requirements, others religious entities—ones that do not qualify for the exemption—may receive an accommodation. The accommodation is designed to allow such an employer to relieve itself of the ACA mandate by certifying to HHS that it is opposed to providing coverage for contraception services. As a result of that certification, a third-party administrator provides for the coverage of the objectionable contraceptives.

Procedural history

Previously, the Little Sisters challenged the accommodation before a circuit court, which denied its request for a preliminary injunction to allow it to avoid the accommodation. The Tenth Circuit upheld the denial, reasoning that the accommodation did not violate the RFRA, as it did not constitute a substantial burden on the Little Sisters’ religious exercise because it would not have to provide, pay for, or facilitate contraceptive coverage (see Prayers for injunctions go unanswered in appellate review of contraceptive accommodation, Health Reform WK-EDGE, July 15, 2015).

The Little Sisters then filed a petition with the U.S. Supreme Court, and the Tenth Circuit entered an order stating that the organization did not have to comply with the accommodation while the Supreme Court decision was pending (see Little Sisters granted relief from the heat, Health Reform WK-EDGE, August 26, 2015). The Tenth Circuit, following a poll of the circuit’s active judges, entered an order denying rehearing. The dissent criticized the decision of the court, saying “the opinion of the panel majority is clearly and gravely wrong—on an issue that has little to do with contraception and a great deal to do with religious liberty” (see Judges call majority ‘clearly and gravely wrong’ in contraception mandate case, Health Reform WK-EDGE, September 9, 2015).

Reply brief

In the government’s response to the Little Sisters petition, it argued that Roman Catholic Archbishop of Washington v. Burwell was the “most suitable vehicle” for resolving the contraceptive mandate issue and that the Supreme Court should grant the petition for writ of certiorari in that case instead of Little Sisters. In its reply brief, the Little Sisters argued, “After impermissibly trying to pick and choose which religious groups to exempt from the contraceptive mandate, HHS should not now be allowed to pick and choose its opponent or which questions it must confront in defending its actions.” The Little Sisters further argue that there is no clearer violation of the Constitution’s religion clauses than a regulation that is specifically designed to protect houses of worship but that leave out equally religious organizations, even though they assert the exact same religious objection with the exact same religious conviction.