Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania

• Decision Date: 08 July 2020
• Docket Number: Nos. 19-431,19-454,s. 19-431
• Citation: 140 S.Ct. 2367,207 L.Ed.2d 819
• Parties: LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME, Petitioner v. PENNSYLVANIA, et al.; Donald J. Trump, President of the United States, et al., Petitioners v. Pennsylvania, et al.
• Court: U.S. Supreme Court

140 S.Ct. 2367

207 L.Ed.2d 819

LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME, Petitioner

v.PENNSYLVANIA, et al.;

Donald J. Trump, President of the United States, et al., Petitioners

v.Pennsylvania, et al.

Nos. 19-431

19-454

Supreme Court of the United States.

Argued May 6, 2020

Decided July 8, 2020

Paul D. Clement, Erin E. Murphy, Andrew C. Lawrence, Mariel A. Brookins, Kirkland & Ellis LLP, Washington, DC, Mark L. Rienzi, Eric C. Rassbach, Lori H. Windham, Diana M. Verm, Chris Pagliarella, The Becket Fund for Religious Liberty, Washington, DC, for petitioner Little Sisters of the Poor Saints Peter and Paul Home.

Noel J. Francisco, Solicitor General, Joseph H. Hunt, Assistant Attorney General, Jeffrey B. Wall, Deputy Solicitor General, Hashim M. Mooppan, Deputy Assistant Attorney General, Christopher G. Michel, Benjamin W. Snyder, Assistants to the Solicitor General, Sharon Swingle, Lowell V. Sturgill Jr., Karen Schoen, Attorneys, Department of Justice, Washington, DC, for Petitioners Donald J. Trump, President of the United States, et al.

Gurbir S. Grewal, Attorney General, State of New Jersey, Glenn J. Moramarco, Assistant Attorney General, Elspeth Hans, Eric L. Apar, Deputy Attorneys General, Office of Attorney General, Trenton, NJ, Josh Shapiro, Attorney General, Commonwealth of Pennsylvania, Michael J. Fischer, Counsel of Record, Chief Deputy Attorney General, Aimee D. Thomson, Jacob B. Boyer, Deputy Attorneys General, Office of Attorney General, Philadelphia, PA, for Respondents.

Justice THOMAS delivered the opinion of the Court.

In these consolidated cases, we decide whether the Government created lawful exemptions from a regulatory requirement implementing the Patient Protection and Affordable Care Act of 2010 (ACA), 124 Stat. 119. The requirement at issue obligates certain employers to provide contraceptive coverage to their employees through their group health plans. Though contraceptive coverage is not required by (or even mentioned in) the ACA provision at issue, the Government mandated such coverage by promulgating interim final rules (IFRs) shortly after the ACA's passage. This requirement is known as the contraceptive mandate.

After six years of protracted litigation, the Departments of Health and Human Services, Labor, and the Treasury (Departments)—which jointly administer the relevant ACA provision¹ —exempted certain employers who have religious and conscientious objections from this agency-created mandate. The Third Circuit concluded that the Departments lacked statutory authority to promulgate these exemptions and affirmed the District Court's nationwide preliminary injunction. This decision was erroneous. We hold that the Departments had the authority to provide exemptions from the regulatory contraceptive requirements for employers with religious and conscientious objections. We accordingly reverse the Third Circuit's judgment and remand with instructions to dissolve the nationwide preliminary injunction.

I

The ACA's contraceptive mandate—a product of agency regulation—has existed for approximately nine years. Litigation surrounding that requirement has lasted nearly as long. In light of this extensive history, we begin by summarizing the relevant background.

A

The ACA requires covered employers to offer "a group health plan or group health insurance coverage" that provides certain "minimum essential coverage." 26 U.S.C. § 5000A(f)(2) ; §§ 4980H(a), (c)(2). Employers who do not comply face hefty penalties, including potential fines of $100 per day for each affected employee. §§ 4980D(a)–(b); see also Burwell v. Hobby Lobby Stores, Inc. , 573 U.S. 682, 696–697, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014). These cases concern regulations promulgated under a provision of the ACA that requires covered employers to provide women with "preventive care and screenings" without "any cost sharing requirements." 42 U.S.C. § 300gg–13(a)(4).²

The statute does not define "preventive care and screenings," nor does it include an exhaustive or illustrative list of such services. Thus, the statute itself does not explicitly require coverage for any specific form of "preventive care." Hobby Lobby , 573 U.S. at 697, 134 S.Ct. 2751. Instead, Congress stated that coverage must include "such additional preventive care and screenings ... as provided for in comprehensive guidelines supported by the Health Resources and Services Administration" (HRSA), an agency of the Department of Health and Human Services (HHS). § 300gg–13(a)(4). At the time of the ACA's enactment, these guidelines were not yet written. As a result, no specific forms of preventive care or screenings were (or could be) referred to or incorporated by reference.

Soon after the ACA's passage, the Departments began promulgating rules related to § 300gg–13(a)(4). But in doing so, the Departments did not proceed through the notice and comment rulemaking process, which the Administrative Procedure Act (APA) often requires before an agency's regulation can "have the force and effect of law." Perez v. Mortgage Bankers Assn. , 575 U.S. 92, 96, 135 S.Ct. 1199,191 L.Ed.2d 186 (2015) (internal quotation marks omitted); see also 5 U.S.C. § 553. Instead, the Departments invoked the APA's good cause exception, which permits an agency to dispense with notice and comment and promulgate an IFR that carries immediate legal force. § 553(b)(3)(B).

The first relevant IFR, promulgated in July 2010, primarily focused on implementing other aspects of § 300gg–13. 75 Fed. Reg. 41728. The IFR indicated that HRSA planned to develop its Preventive Care Guidelines (Guidelines) by August 2011. Ibid. However, it did not mention religious exemptions or accommodations of any kind.

As anticipated, HRSA released its first set of Guidelines in August 2011. The Guidelines were based on recommendations compiled by the Institute of Medicine (now called the National Academy of Medicine), "a nonprofit group of volunteer advisers." Hobby Lobby , 573 U.S. at 697, 134 S.Ct. 2751. The Guidelines included the contraceptive mandate, which required health plans to provide coverage for all contraceptive methods and sterilization procedures approved by the Food and Drug Administration as well as related education and counseling. 77 Fed. Reg. 8725 (2012).

The same day the Guidelines were issued, the Departments amended the 2010 IFR. 76 Fed. Reg. 46621 (2011). When the 2010 IFR was originally published, the Departments began receiving comments from numerous religious employers expressing concern that the Guidelines would "impinge upon their religious freedom" if they included contraception. Id. , at 46623. As just stated, the Guidelines ultimately did contain contraceptive coverage, thus making the potential impact on religious freedom a reality. In the amended IFR, the Departments determined that "it [was] appropriate that HRSA ... tak[e] into account the [mandate's] effect on certain religious employers" and concluded that HRSA had the discretion to do so through the creation of an exemption. Ibid. The Departments then determined that the exemption should cover religious employers, and they set out a four-part test to identify which employers qualified. The last criterion required the entity to be a church, an integrated auxiliary, a convention or association of churches, or "the exclusively religious activities of any religious order." Ibid. HRSA created an exemption for these employers the same day. 78 Fed. Reg. 39871 (2013). Because of the narrow focus on churches, this first exemption is known as the church exemption.

The Guidelines were scheduled to go into effect for plan years beginning on August 1, 2012. 77 Fed. Reg. 8725–8726. But in February 2012, before the Guidelines took effect, the Departments promulgated a final rule that temporarily prevented the Guidelines from applying to certain religious nonprofits. Specifically, the Departments stated their intent to promulgate additional rules to "accommodat[e] non-exempted, non-profit organizations’ religious objections to covering contraceptive services." Id. , at 8727. Until that rulemaking occurred, the 2012 rule also provided a temporary safe harbor to protect such employers. Ibid. The safe harbor covered nonprofits "whose plans have consistently not covered all or the same subset of contraceptive services for religious reasons."³ Thus, the nonprofits who availed themselves of this safe harbor were not subject to the contraceptive mandate when it first became effective.

The Departments promulgated another final rule in 2013 that is relevant to these cases in two ways. First, after reiterating that § 300gg–13(a)(4) authorizes HRSA "to issue guidelines in a manner that exempts group health plans established or maintained by religious employers," the Departments "simplif[ied]" and "clarif[ied]" the definition of a religious employer. 78 Fed. Reg. 39873.⁴ Second, pursuant to that same authority, the Departments provided the anticipated accommodation for eligible religious organizations, which the regulation defined as organizations that "(1) [o]ppos[e] providing coverage for some or all of the contraceptive services ... on account of religious objections; (2) [are] organized and operat[e] as ... nonprofit entit[ies]; (3) hol[d] [themselves] out as ... religious organization[s]; and (4) self-certif[y] that [they] satisf[y] the first three criteria." Id. , at 39874. The accommodation required an eligible organization to provide a copy of the self-certification form to its health insurance issuer, which in turn would exclude contraceptive coverage from the group health plan and provide payments to beneficiaries for contraceptive services separate from the health plan. Id. , at 39878. The Departments stated that the accommodation aimed to "protec[t]" religious organizations "from having to contract, arrange, pay, or refer for [contraceptive] coverage" in a way that was consistent with and did not violate the Religious Freedom Restoration Act of 1993 (RFRA),...