Why Jews Should Be Supporting Nuns

Regulations enacted by executive agencies often govern Americans’ lives more directly than congressional statutes. Agencies craft regulations in such areas as healthcare, education, and environmental protection. Over 100,000 regulations are currently on the books, and thousands more are added annually.

The Supreme Court will soon determine whether the Religious Freedom Restoration Act (“RFRA”) allows agencies to ensure that their regulations do not unnecessarily burden the free exercise of religion. That decision will be made in the context of Little Sisters of the Poor vs. Pennsylvania. In this case, the Court is being asked to decide whether the Department of Health and Human Services (“HHS”) can grant nuns an exemption from a regulation requiring employers to provide their employees with free access to abortion-inducing drugs.

This is the Little Sisters’ second trip to the Supreme Court, and it’s possible that the issues this time around are even more consequential than they were last time. In 2010, Congress passed the Affordable Care Act, which requires employers to provide insurance that includes “preventative care.” It does not, however, state what this care includes. The statute delegated that decision to HHS.

In 2011, HHS interpreted “preventative care” to include providing contraceptives, abortifacients, and sterilization procedures. The Little Sisters and other religious groups protested that providing these items impinged upon their religious liberty, so in 2013 HHS exempted churches from its regulation and granted a limited accommodation to groups like the Little Sisters.

The Sisters, however, maintained that, even under the accommodation, they were impermissibly complicit in providing the abortion-inducing drugs. They sued HHS for more relief. In 2015, the Supreme Court ordered HHS and the Little Sisters to attempt to resolve their dispute through further discussion and rulemaking.

Following his election, President Trump issued an executive order that directed HHS to consider alternative plans to protect the Sisters’ rights. In 2017, HHS issued a new regulation granting the Little Sisters and other objectors the same exemption as churches. During the negotiations ordered by the Supreme Court, HHS determined that RFRA required it to grant objectors an expanded exemption.

RFRA states that “government shall not substantially burden a person’s exercise of religion” unless doing so is necessary to further a compelling government interest. HHS concluded that the best way to satisfy this requirement was to exempt groups like the Sisters.

But Pennsylvania and New Jersey sued HHS, claiming that RFRA did not empower it to create religious exemptions. They argued that RFRA only allows courts to vindicate religious people’s rights once they have been violated; it does not empower agencies to take steps to avoid burdening those rights in the first place. The lower courts ruled for the states, and the Supreme Court agreed to review the case.

The states’ novel interpretation of RFRA is contrary to the statute’s intent and text and would harm religious Americans. Under the existing understanding of RFRA, agencies must independently determine if their regulations violate the law. The Department of Education, for example, must consider whether regulations governing curricula or the hiring of teachers violate religious liberty. The military is required to determine whether regulations governing religious garb or beards burden religious exercise.

Likewise, HHS must examine whether regulations that could affect circumcision or require doctors to perform certain religiously-objectionable procedures comply with RFRA. Under the interpretation of Pennsylvania and New Jersey, however, RFRA does not require agencies to perform such reviews. In fact, they are forbidden from conducting them unless some other statute empowers them to do so.

If the Supreme Court rules for the states, it will result in unnecessary lawsuits – lawsuits that could have been avoided though cooperation between agencies and religious groups. Agencies will inevitably write rules that inadvertently burden religious Americans’ faith. Under the current rules, they can grant exemptions once they’re informed of the conflict. However, if the states prevail, those agencies can’t act until they are sued and a court finds that their regulation violated RFRA.

Such a process would be costly and time-consuming and would create unnecessary acrimony. Simply put, the states’ position does not serve anyone’s best interests. RFRA requires all government entities to avoid burdening an individual’s faith, and there is no reason to believe that it left agencies powerless to fulfill its requirements.

Jewish Americans perform many religious practices that government actors may not know about. We should therefore support the commonsense understanding of RFRA, which would allow government agencies to work cooperatively with the Jewish community to ensure that such practices are protected.