Why are the Little Sisters of the Poor still being dragged into court over the Affordable Care Act’s contraception mandate—years after the Supreme Court ruled in their favor?

On this episode of Unwritten Law, Mark Chenoweth and John Vecchione are joined by NCLA Senior Litigation Counsel Andy Morris to discuss a newly filed amicus brief at the U.S. Court of Appeals for the Third Circuit in Pennsylvania & New Jersey v. Trump. The case challenges religious exemptions that protect the Little Sisters, Catholic nuns who object to being forced to provide contraception coverage.

The conversation explores how federal agencies imposed the mandate without clear congressional authorization, why Pennsylvania and New Jersey are suing to eliminate long-standing religious exemptions, and how the case exposes serious constitutional problems—including lack of standing, agency overreach, and violations of the nondelegation doctrine.

At its core, this episode explains why vague laws and unchecked bureaucratic power threaten religious liberty and the separation of powers—and why courts should put an end to litigation that never should have continued.

Unwritten Law examines how unwritten rules, agency actions, and judicial shortcuts quietly reshape the law—often without the consent of the governed.

Mark Chenoweth: Welcome to Unwritten Law with Mark Chenoweth and John Vecchione. We are joined by our colleague, senior litigation counsel Andy Morris, to talk about a recently filed amicus brief at the US Court of Appeals for the Third Circuit. And Andy, this case involves the Little Sisters of the Poor and the Affordable Care Act’s contraception mandate. I thought we were done with that. I thought the Supreme Court had ruled on this, what, twice already? What’s going on here?

Andy Morris: Well, first of all, thanks for having me. And it’s a very long story, as you indicate, that the Supreme Court –

John Vecchione: It’s getting longer all the time.

Andy Morris: But yes, the Little Sisters have been at this for more than a decade, and John’s been involved; I’m new to this. And they really, I guess, need to pay for parking places at the Supreme Court, because they keep getting sent back there even after they win. They prevailed, basically, in the Supreme Court, now five years ago, where the court held – let me set with the issue.

The issue is, as many watchers might remember, under the Obamacare, the Affordable Care Act, the agencies, the HHS, basically, and some sub-agencies, were authorized to issue some requirements for providing preventative medical care for women. And HHS used that to impose this contraceptive mandate.

Mark Chenoweth: And the statute wasn’t explicit on that because they were trying to get it through Congress, and they needed every vote. So, they couldn’t put that in the statute, but then they tried to do it via regulation.

Andy Morris: Yes. A great tease for what our brief is about, which is that the statute didn’t say that. And then, as most casual media watchers will remember, HHS imposed a contraceptive mandate that’s been controversial ever since because it’s imposed by the agency, not by Congress. And because –

Mark Chenoweth: And because they’re imposing it on nuns, for crying out loud.

Andy Morris: And then the question arose whether there should be exceptions for sincere religious objectors such as these nuns who exist to provide care to the elderly and the ill. And the nuns, and John, correct me if I get this wrong, but the gist of their objection was, they objected in some ways to contraception and particularly, certain types of contraception, and they just didn’t want to pay for it for themselves and their employees. They just wanted to kind of be left alone on this point.

Mark Chenoweth: Well, and they’ve taken oaths of chastity, right? So, it’s sort of pointless.

John Vecchione: And it’s also some of the methods are arguably [inaudible] [00:2:27]. And so there’s a lot going on, and so they were mandated. And the mandate changed a little bit and then changed back and each time they won in the Supreme Court, as you’ve pointed out, they went up there, Paul Clement has been up there, I think, twice already on this and the first thing they said, and this is what really gets me about this case right now that we’re doing, the Supreme Court said that the agency in putting in these exceptions – because let’s face it, 98, 99% of these employers are gonna have contraceptive mandates anyway.

And so, for the little tiny people who don’t wanna have this, the agency put it in an exception, and now the states are suing to get rid of the exception. The states are bringing this case to get rid of the exception that the agencies have said, “Look, we don’t wanna fight with the nuns anymore.”

Andy Morris: Once it was basically resolved at the federal level, Pennsylvania, Josh Shapiro, I believe, when, at least for a while –

Mark Chenoweth: When he was attorney general, yeah.

Andy Morris: When he was attorney general, and New Jersey jumped in and said, “We’re offended. We’re gonna sue.”

Mark Chenoweth: Yeah. And that was our good friend Gurbir Grewal, before we went to the SEC.

Andy Morris: Yes, where he’s –

Mark Chenoweth: And when I say good friend, not such a good friend.

Andy Morris: That’s yeah, that too. But a little sark comment there next to that.

Mark Chenoweth: That’s Capitol Hill-ese for somebody that I barely stand.

Andy Morris: And so, the – there’s so many paradoxes on top of paradoxes here is this is states jumping in, and as the Little Sisters pointed out in their direct brief, we have two states jumping in, saying that these interests here and having everyone pay for contraception, including those who object, is compelling interest and incredibly important. And as Little Sisters pointed out, the states don’t provide, they don’t consider it compelling in Pennsylvania or New Jersey, they just wanna require –

Mark Chenoweth: It’s not required under state law. Yeah.

Andy Morris: Right. And also, to provide – step back to the context, remember the purpose of the Affordable Care Act was so that needy folks who can’t afford their insurance can have access to health insurance. But here we are more than 10 years later, litigating whether with that purpose in mind, these nuns who care for elderly people –

Mark Chenoweth: And have health insurance.

Andy Morris: – and have health insurance can just avoid paying for certain kinds of health insurance. So, it’s a far cry from the initial purpose of the legislation.

Mark Chenoweth: Oh, for sure. So, what does the – what do the states say they’re state interest is in forcing contraception coverage onto these nuns?

Andy Morris: They’re main interest, and again, if I don’t get this right, correct me. But they’re main interest is there’s some rhetoric about the interest; they’re citizens in coverage. But the main interest is that it could cost them money, and some of their citizens could be unable to get coverage that those citizens want, depending on their employer.

John Vecchione: Right. They say that this is supposed to be covered under this law, and they’ll have to cover it. And here, the nuns also object to just having to notify HHS that they’re not providing this. There’s a number of issues on conscience on their side. But the states' side is, they say, that they have a budgetary impact. It strikes me from the brief that Paul Clement put in and Little Sisters put in.

Mark Chenoweth: And our friends at Beckett, we should say. This has been Beckett’s case from the get-go.

John Vecchione: Exactly. And –

Mark Chenoweth: And those really are our friends, by the way.

John Vecchione: Yeah. No sark. So, they have pointed out that after over 20 years of litigation, neither New Jersey or Pennsylvania can find one woman who has been able to get contraception through this. Not one. They’ve scoured New Jersey, they’ve gone down everywhere through Pennsylvania, through hollers and hills, and they haven’t found one woman in a decade who has avoided getting contraception because of this exception for the nuns.

Mark Chenoweth: Are you saying no nuns? None?

Andy Morris: Which actually is a huge point. ‘Cause as NCLA knows, and other groups know, standing is such a challenge. Finding people injured. That means you’ve been hurt in a way that you’re allowed to go to court. And courts are hard on standing in some contexts, and this is a judge in the eastern district of Pennsylvania, who has permitted the states to have standing even though, as John pointed out, and you kind of can’t overstate the importance of this point, nobody’s been injured. Nobody’s been injured. We’re now how many years into this particular lawsuit? It started in the teens, and they still can’t come up with one person who’s not been able to get the coverage she wants. But the judge still lets them sue.

Mark Chenoweth: Yeah. I think this is Judge Wendy Beetlestone, in the Eastern District?

Andy Morris: That’s right. In Philadelphia, yeah.

Mark Chenoweth: I seem to remember, John, standing, being in the way of certain other cases at the Supreme Court. I don’t –

John Vecchione: Tons of them. But Murphy’s the one that pops into my head immediately. And I’ll tell you, we had some injured people. Oh, you don’t know who did it. Well, we knew who did it. But in any event. Be that as it may, our brief – this is really a fight between Pennsylvania versus Trump. How are the Little Sisters in this case?

Mark Chenoweth: And actually, identified people who were harmed by the mandate.

Andy Morris: Yes. And the judge denied their request. And so, they had to go up to the Court of Appeals, the third circuit, not necessarily the friendliest circuit in some ways to them. And the third circuit said, “Well, of course you can intervene.” And they wrote a pretty strong opinion saying, of course, they have an interest. But that kind of set the table about what this district court judge was gonna do in this case. And so, they’ve been in the case for that reason, because, obviously, they’re affected to their interveners. And so, they’ve been in the case since then in that capacity.

And so, the Supreme Court ruled for them and said that the – and they said it in these words, I’m not paraphrasing, and this is why what’s going on now is so mystifying to me. They said the administrative agencies can take into account religious liberty and moral concerns when making exceptions. They said almost exactly that in exactly those words. And then what has the district court done?

Andy Morris: Well, that was a seven-to-two decision, by the way.

John Vecchione: Yes.

Andy Morris: And so, it carried justices from both sides of the aisle as the world thinks at this point.

Mark Chenoweth: And some non-Catholics.

Andy Morris: That’s right. And so, it went back to the district court, which then considered additional issues under the Administrative Procedure Act, about which you all have been in-fighting for years. It has a lot of fairly agency-friendly standards about what counts as rational and so forth. And she found in a detailed opinion that certain bases for providing exceptions just weren’t rational. Basically, didn’t make any sense. And –

Mark Chenoweth: And this is a Biden-era regulation that’s under?

Andy Morris: This is now primarily an expansion of the exception that’s back being litigated.

Mark Chenoweth: I see. Okay. So, a Trump-era exception.

Andy Morris: I think that’s a fair way to summarize it. There’s been back and forth. And so, it’s one reason that the case was dormant for several years in this court.

Mark Chenoweth: Oh, yeah. It’s funny how the state AGs from blue states are less interested in the litigation when Biden’s in the White House. Then Trump gets elected, and suddenly, it’s “Oh, we need to be investigating –”

John Vecchione: I think they said they were reworking the exception. It was one of these the government said they were looking at it.

Andy Morris: Right, and so, okay, she –

Mark Chenoweth: The fix was in if you ask me, but okay.

Mark Chenoweth: But what’s NCLA’s argument in the amicus brief? You alluded to it earlier, Andy, that we don’t think the statute even allows this.

Andy Morris: And so, it’s a little complicated, the exact connection. But the gist is simple, which is that NCLA’s concern is that the judge’s, to use diplomatic words, back and forth in this case and reaching the same outcome despite the Supreme Court ruling, really shows how really manipulable the statute is, and that the underlying problem is what we call a non-delegation problem. An excess of delegation, which is Congress passed this vague law that didn’t give the level of guidance or limitation to the agencies that the Constitution requires.

Mark Chenoweth: Yeah. And they did that quite deliberately.

Andy Morris: And as you indicated at the start, back to your teaser in the start, is Congress did that deliberately, probably confident in the Obama-era that HHS would jump in and do what it did. And so, we support the Little Sisters and Beckett’s very good explanation of why that’s an underlying problem here.

Mark Chenoweth: Yeah. Well, ‘cause there’s no bicameralism and no presenter, which is what you have to have in order to have a law. And this – make no mistake about it, if this contraceptive mandate goes into effect, that is a law, that is binding, that is restricting liberty, that’s something that’s supposed to go through bicameralism and presentment. Not something that’s supposed to be vaguely waved on by Congress and then have an agency come in and sort of stick the shiv in you.

Andy Morris: And here to finish up, that’s exactly right. And we are not arguing that the whole law should be struck down at this point. We’re supporting the argument of the Little Sisters that, for technical reasons, what this means is that the state’s complaint should be dismissed in a sense, ‘cause they can’t have it both ways. They can’t have the whole mandate without the exceptions, because it leads to what they call redressability problems.

But we support the Little Sisters and the Beckett argument on a doctrine that’s important to NCLA, which is Congress has to give clear guidance to agencies. And that’s the whole non-delegation doctrine argument that NCLA has pursued for years, and that is that legislative power is vested in Congress. And all legislative power is vested in Congress. Congress can’t just hand it off and say, “Here, agency, you take care of this whole area.”

Mark Chenoweth: Right, you do it instead.

Andy Morris: Right.

John Vecchione: And I’ll say another Phillip Hamburger writes about how administrative agencies and courts are less solicitous of religious liberty than Congress is. And so that’s another problem that here the agencies are actually trying to address it and the court’s saying, “No, you’re not allowed to.”

Andy Morris: Right. And so, if we can recap how that fits in with non-delegation is it’s important that Congress not hand off legislative authority. And we argue in some that courts looking at statutes should be especially aware of this excess of handing off problem when Congress is delegating authority to take actions that might infringe on religious rights, religious liberty, because agencies have these practical, technical goals and, unlike Congress, they’re just not in a position to take into account its effect on religious liberty.

And so, the non-delegation doctrine is particularly important in this kind of area. And Phillip Hamburger has written about that, and so that’s – we kind of explain that connection in our brief and why it’s particularly important in this kind of case.

Mark Chenoweth: Well, it sounds like the Third Circuit could rule for the nuns based on the non-delegation theory, it could rule for the nuns based on the fact that Pennsylvania and New Jersey have not identified a single person who’s harmed here, so, sort of a standing. Are there any other bases on which the court might rule? Or are those the two main ones?

John Vecchione: I think I read somewhere, there’s one little – it looks like some of these arguments haven’t been made by the government, by the Trump administration. I think the court said in the opinion, and I don’t recall reading the briefs, that the government hadn’t made a standing argument against the states. So, she was saying that Little Sisters can’t make it. But I think that –

Mark Chenoweth: Standing is a jurisdictional argument. You can absolutely make it.

John Vecchione: That’s exactly correct.

Andy Morris: There are two problems, no, you’re right. Two problems with what the court does there is as you indicate, Mark, standing is – the court should look at that anyway. And also, second is –

Mark Chenoweth: Sua sponte, they say.

Andy Morris: Sua sponte. And second is, it’s kind of the point of interveners. Interveners are allowed to raise certain arguments or magnify certain arguments until we point that out in another way in our brief. But there’s a lot of gymnastics in the, I think as John put it, cartwheels, in the district court’s opinion, to avoid issues she wants to avoid and get to issues she wants to get to. And so, there’s a number of points just as a matter of legal carpentry, where the district court opinion is vulnerable to reversal depending on where they kind of first get footing.

John Vecchione: And I think that’s in the little sister’s brief. I don’t think that’s me.

Mark Chenoweth: Well, when judges – when district judges are turning cartwheels instead of turning square corners, they should look to get overturned, I think, at the court of appeals. So, that’s not too surprising. Any final thoughts, Andy, before we wrap up here?

Andy Morris: I don’t think so. I defer to you all on predictions in the Third Circuit. I don’t know how much momentum this case is. It’s a remarkable history. I urge viewers to look at it; it’s amazing. And this, in particular, where you have the Supreme Court reverse this judge, and here she is back with a long, detailed opinion with a new basis. There are a number of footholds for an appellate court to say, “Well, we’re gonna stop here because this is, she got this step wrong.” So, it’s hard to predict what’ll happen or where they might choose to reverse her, or just they might bless everything, and we’ll be off to the Supreme Court again.

Mark Chenoweth: Well, I don’t know. Usually, I agree with you that it’s hard to predict these things, but here, I think you’ve got a district judge that has the bit in her teeth, maybe, I could say. And I don’t think you’re gonna have that at the Third Circuit. I think the Third Circuit is gonna look at this case and say, “Well, the Supreme Court’s made it pretty clear how they feel about it. Let’s put an end to this first.”

John Vecchione: I think it’ll be like the First Circuit isn’t even waiting to reverse Talani lately, you know what I mean? There’s just certain – although this one was much better written, I have to say, than some of these.

Andy Morris: She clearly was very committed.

John Vecchione: Yes. But yes, I agree with Mark.

Mark Chenoweth: Well, again, the case is Pennsylvania and New Jersey v. Trump at the US Court of Appeals for the Third Circuit. And Andy, thank you for coming on the show to talk about the amicus brief. And we’ll let people know what happens with oral argument and when that case gets decided at the Third Circuit. Thank you for tuning in. You’ve been listening to Unwritten Law.

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Duration: 19 minutes