ACLJ Files at the Supreme Court in Support of the Little Sisters of the Poor to Defeat the Abortion-Pill Mandate


Geoffrey Surtees

March 9, 2020

6 min read




Today, the ACLJ filed an amicus brief with the United States Supreme Court in support of the Little Sisters of the Poor and the Trump Administration and their efforts to defend religious employers that object to the abortion-pill mandate. The brief was submitted on behalf of over 463,000 ACLJ supporters as an expression of their opposition to the mandate’s encroachment on religious civil liberties.

As explained in more detail here, after the Trump Administration adopted regulations protecting entities whose religious or moral convictions will not allow them to participate in the provision of abortifacient drugs to their employees, the States of Pennsylvania and New Jersey sued the government to stop these regulations in their tracks. (We not only submitted official public comments supporting these regulations, but we also filed an amicus brief with the district court to help defend them.) The states argued, among other things, that the law which protects against the federal government substantially burdening religious practice (the Religious Freedom and Restoration Act) did not authorize the exemptions.

The Third Circuit agreed with the states and imposed a nationwide injunction barring their enforcement.

As we argue in our brief, respecting religious freedom and the right of conscience has been a longstanding practice of our country. According to one scholar of religion and the law, whom we quote in the brief, “[t]he pursuit of religious liberty was one of the most powerful forces driving early settlers to the American continent and remained a powerful force at the time of the founding of the American republic.”

The introduction of our amicus brief described how President Thomas Jefferson treated a Catholic order of nuns and their request for religious autonomy; it is a different treatment from what the Little Sisters received from the Obama Administration:

In 1804, the Ursuline Sisters of New Orleans wrote a letter to the Secretary of State, James Madison, expressing their concerns that the Jefferson administration would not respect the rights that they had enjoyed prior to the Louisiana Purchase. After Madison replied, sharing the President’s “grateful sentiments due to those of all religious persuasions who so laudably devote themselves in its diffusion,” Jefferson himself wrote in response:

I have received, Holy Sisters, the letters you have written to me, wherein you express anxiety for the property vested in your institution by the former Government of Louisiana. The principles of the Government and Constitution of the United States are a sure guaranty to you that it will be preserved to you sacred and inviolate, and that your institution will be permitted to govern itself according to its own voluntary rules, without interference from civil authority.

Jefferson pledged that the Sisters’ charitable work would be afforded “all the protection my office can give it.”

If the previous administration, when it first created the mandate, offered to the Little Sisters of the Poor the same solicitude that Jefferson offered the Ursuline Sisters, it would not have been necessary for the Sisters to engage in years of litigation, at every level of the federal judiciary, to secure their legal rights. Not only that, but had the previous administration granted to the Little Sisters the same religious exemption that the current administration has granted, it is highly doubtful that Respondents would have sued that administration in order to force the Sisters to violate their conscience.

This case is therefore not about access to cost-free contraceptive services, which the government could provide to citizens in any number of ways without dragooning religious objectors into participating. It concerns whether the government can alleviate religious burdens that it itself has imposed. Entities like the Little Sisters desire only to conduct themselves according to their religious convictions, free from governmental coercion, on a subject matter of great moral significance.

Religious freedom means more than the right to hold religious beliefs or to participate in religious worship. Religious freedom entails the right to act according to one’s religious convictions—in the public square and in the private sector.  As one court of appeals correctly stated, “[f]ree religious exercise would mean little if restricted to places of worship or days of observance, only to disappear the next morning at work.”

Coercing the Little Sisters of the Poor and other employers to participate in the provision of drugs to which they object on religious grounds violates the “sacred and inviolate” right of conscience that Jefferson spoke of. The Trump Administration’s efforts to honor that right should be applauded, not struck down as illegal, as the Third Circuit did.

In addition to arguing that the religious exemption is fully in keeping with the history, nature, and meaning of the First Amendment’s religion clauses (the Free Exercise Clause and the Establishment Clause), we point out that the state attorneys general in this case have suffered no constitutional injury as a result of the exemptions:

Allowing state attorneys general to challenge federal regulations that address abortion access or conscience rights based merely on the consequential budgetary impact from such rulemaking would create an unprecedented and unwarranted expansion of state attorney general standing. This flawed view of the law would give state attorneys general standing to attack, in federal court, the Hyde Amendment’s bar on federal tax funding of abortions, the federal conscience protection statutes, and any regulations that protect conscience in these contexts, and would open the floodgates for a host of federal lawsuits by states contesting federal actions that at most have incidental economic impacts on states (a category that likely sweeps in most, if not all, federal action).

In other words, if the states have legal standing to press their challenges against the religious exemptions in this case, then states would also have legal standing to mount attacks against federal regulations that attorneys general dislike on pure political grounds. Federal courts, however, are not the place to settle policy disagreements or ideological controversies—that is the role of legislatures and, ultimately, the ballot box. Because Pennsylvania and New Jersey have suffered no injury as a result of the regulations at issue in this case, the case should be dismissed outright and the exemptions left intact.

The Supreme Court will hear oral arguments on April 29, and a decision is expected by the end of June.

We must pray that the Court will—at long last—put an end to those efforts that would require Catholic nuns to violate their religious conscience. If our society is going to be so brazen as to coerce Catholic nuns to violate their religious conscience, no one’s civil liberties are safe.