When former President Barack Obama was in office, his administration fought all the way to the Supreme Court in an attempt to force Americans to act against their consciences by providing insurance coverage for contraceptives -- including abortifacients -- through a federal regulation issued under the so-called Affordable Care Act.
The Supreme Court seemed to have decided this question in its 2014 opinion in Burwell v. Hobby Lobby Stores, Inc., and its 2020 opinion in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania.
In the Hobby Lobby case, the family-owned business sued then-Health and Human Services Secretary Kathleen Sebelius, arguing that the regulation forcing them to provide coverage for contraceptives in their employee health insurance plan violated their First Amendment right to the free exercise of religion. They also argued that it violated the Religious Freedom Restoration Act.
That act was signed into law by former President Bill Clinton in 1993. According to its official summary, it "prohibits any agency, department, or official of the United States or any State (the government) from substantially burdening a person's exercise of religion even if the burden results from a rule of general applicability, except that the government may burden a person's exercise of religion only if it demonstrates that application of the burden to the person: (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest."
The court ruled 5-4 in favor of Hobby Lobby.
"We must decide in these cases whether the Religious Freedom Restoration Act of 1993 ... permits the United States Department of Health and Human Services (HHS) to demand that three closely held corporations provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies' owners," Justice Samuel Alito wrote in the majority opinion. "We hold that the regulations that impose this obligation violate RFRA, which prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest."
After President Donald Trump took office in 2017, the Department of Health and Human Services issued new regulations exempting from the Obama administration's contraception mandate employers who objected to it on religious or moral grounds.
In the Little Sisters of the Poor case in 2020, the Supreme Court ruled 7-2 that federal agencies had acted legally in establishing these exemptions.
Pennsylvania and New Jersey, however, are now in federal court again attempting to reverse the Trump administration's regulatory change -- and force, among others, the Little Sisters of the Poor, an order of Catholic nuns, to provide insurance coverage for contraceptives (including abortifacients).
Last August, Judge Wendy Beetlestone, an Obama appointee on the U.S. District Court for the Eastern District of Pennsylvania, decided in favor of Pennsylvania and New Jersey and against the Trump administration and the Little Sisters of the Poor. In her written opinion, she stated "that both the Religious and Moral Rule are arbitrary and capricious," concluding that "the Rules shall be vacated in their entirety."
The Little Sisters of the Poor have appealed this decision to the U.S. Court of Appeals for the Third Circuit.
After Trump took office for his second term last year, he issued an executive order establishing a federal "Religious Liberty Commission."
"President Trump is addressing emerging threats to religious liberty to ensure Americans can freely practice their faith without government interference," said a White House fact sheet about this commission.
"The United States Constitution enshrines the fundamental right to religious liberty in the First Amendment," it said. "Recent Federal and State policies have undermined this right by targeting conscience protections, preventing parents from sending their children to religious schools, threatening funding and non-profit status for faith-based entities, and excluding religious groups from government programs."
On March 16, this commission held a hearing on religious liberty in health care and social services at the Museum of the Bible in Washington, D.C.
Archbishop Salvatore Cordileone of San Francisco, who is on the advisory board of the commission, directly addressed the issue raised by the ongoing case of the Little Sisters of the Poor.
The Little Sisters of the Poor, said the archbishop, is "a congregation of women who vow themselves to be poor as well as chaste and obedient in order to devote their entire lives to caring for the elderly poor. ... These are women who deserve our utmost respect and esteem, and I can vouch for this from personal experience."
"Why must they be deprived of their God-given and constitutional right to serve the poor and with such great sacrifice, in accordance with their moral principles derived from their religious faith?" he said.
"Their witness to heroic, evangelical charity is unmatched, and all of us should take inspiration from their courage," he said. "Their fight to uphold religious liberty was not just for them and the thousands of vulnerable elderly they serve, but it was a fight for all of us and, in some sense, a fight for the soul of our country.
"This is why it is important that we are here today, and I am grateful for the opportunity to address you and grateful for the work of this commission, which can be a path to restoring unity in this one area of division.
"The Founding Fathers understood the value, even the necessity, of religion, of religious citizens, and the freedom to practice one's faith, which is different from the freedom to worship," said Archbishop Cordileone. "The First Amendment is not simply about the freedom to worship as we believe, but to live and act according to those beliefs. The Founding Fathers understood that there had to be a check on secular government in order to prevent the constant tendency to overreach and control. They understood that communities of faith provide this check and may at times serve as the only barrier to the government descending into tyranny and despotism, which happens in parts of the world where robust religious freedom is not embraced in contrast to our own Constitution.
"The framers of our Constitution knew what they were doing, and we adhere to their vision to our flourishing, or violate it to our demise."
Archbishop Cordileone is right.