On May 6, the Supreme Court will hear arguments in Little Sisters v. Pennsylvania (consolidated with Trump v. Pennsylvania), a case concerning the Affordable Care Act’s mandated health insurance coverage of contraception. Right-wing media and abortion opponents continue to push misinformation about the contraception mandate, even though it has been modified by previous court decisions to address concerns, and have been claiming that it violates the religious liberty of religiously affiliated organizations.
Issues related to if and how the ACA must carve out exemptions in its contraception mandate for religiously affiliated organizations were addressed by the Supreme Court in Burwell v. Hobby Lobby in 2014 and Zubik v. Burwell in 2016. The Little Sisters case is a lawsuit brought not by the organizations, but by the states of Pennsylvania and New Jersey, which object to rules the Trump administration released enabling “any private company with religious or moral objections to birth control to access exemptions.”
The Constitutional Accountability Center’s David H. Gans explained of the case in Slate: “A religiously affiliated employer known as” the Little Sisters of the Poor responded to the states' argument by “urging the Supreme Court to bless the Trump administration’s decision to give employers an unconditional religious exemption from the contraceptive coverage requirements.”
“Even though the ACA’s religious accommodation eliminates any role for the employer in providing contraceptive services and shifts the burden of paying for contraceptive coverage to insurance companies, the Little Sisters argues that the accommodation still tramples on its religious beliefs,” Gans explained. “ … The Affordable Care Act has already accommodated the beliefs of those who have a religious objection to contraception.”
But right-wing misinformation surrounding this case and its previous iterations goes beyond arguments about religious liberty. As the previous cases wended their way through the courts, a prominent right-wing argument was that religiously affiliated organizations do not want to facilitate access to “abortifacients,” even though medical experts agree that the contraceptives covered under the mandate do not result in an abortion and, therefore, are not “abortifacients.” That misinformation is expected to reemerge with this case.
In addition, coverage of Little Sisters in anti-abortion media has misleadingly focused on the role that the Little Sisters has had in caring for the elderly during the coronavirus pandemic -- a tactic that right-wing media similarly employed in the previous cases. For example, on Eternal World Television Network’s Pro-Life Weekly, host Catherine Hadro said in an interview with Montse Alvarado, the vice president and executive director of the group representing the Little Sisters, “I just can’t help but think how this coronavirus pandemic really underlines that: We need the Little Sisters of the Poor now more than ever.” National Review falsely downplayed the importance of the ACA even covering contraceptives:
There is no contraceptive crisis in the United States. Americans have far more trouble paying for expensive health-care treatments than they do financing various forms of birth control. The mandate, along with the failed crusade against Hobby Lobby and the ceaseless punitive lawsuits against Catholic nuns who serve the elderly poor, are meant to enforce a worldview that contraception is health care — and, in the progressive formulation, a human right. Religious or moral objections must crumple in the face of this view. That isn’t a side effect of the mandate or these lawsuits; it’s the point.
Right-wing media are generally trying to paint Democrats as “extreme” on abortion in the lead-up to this year's presidential election, and coverage of the Little Sisters case appears to follow this trend. Some have attacked House Speaker Nancy Pelosi (D-CA) for joining an amicus brief arguing against the Trump administration, dishonestly insisting that she would “curtail religious liberty” and that she believes the “Little Sisters of the Poor should be forced to pay for abortions.” Yet the ACA’s contraceptive mandate has already made accommodation for the religious liberty of the organizations, and the case has nothing to do with abortion, but with contraceptives.
In 2017, President Trump issued an executive order saying the Little Sisters is protected from “undue interference from the federal government.” And in 2018, Trump’s Health and Human Services Secretary Alex Azar built upon the executive order by exempting religious nonprofit groups from Obamacare’s contraception mandate.
Trump soon baked his defense of the order into his pitch to religious voters. He often mentions it at campaign rallies and in speeches, including at the 2020 March for Life, where Trump became the first president to address the annual anti-abortion event in person. Trump’s 2020 campaign is already using the issue as a weapon against former Vice President Joe Biden as well, since the case arose under his watch.
Former Rep. Tim Huelskamp, a member of Trump's campaign outreach to Catholics, told the Washington Examiner that Trump will likely keep bringing up the Little Sisters when he criticizes Biden’s record.
“He can have Joe Biden and the Democratic Party hating the Little Sisters of the Poor,” he said. “That is just not a good position to be in for the Democratic Party.”
Right-wing media will likely fall right alongside Trump in promoting misinformation on Little Sisters as the Supreme Court hears and decides the case.