Supreme Court Review

Article Title

Not in the Room Where It Happens: Adversariness, Politicization, and Little Sisters of the Poor


“The art of the compromise/hold your nose and close your eyes/we want our leaders to save the day/but we don’t get a say in what they trade away.” What happens when some people are singularly not in “the room where it happens,” where laws are passed, regulations are devised, and lawsuits are argued and decided? Participation, individual rights, and democratic accountability are supposed to be central in a constitutional democracy but can be elusive in practice, as any member of any kind of minority knows. The gap between the ideal and the reality of constitutional democracy is especially challenging where different groups claim competing rights and interests. On the one hand, the case of Little Sisters of the Poor Saints Peter and Paul Home v Pennsylvania emerged from decades of political and legal struggles over religious accommodation and employer coverage of contraceptive services under publicly mandated health plans. On the other hand, the convergence of debates over birth control, religious exercise, and healthcare provision leaves in its wake concerns over who has been heard and how justifiable interests can all be recognized. Respect for individuals’ free exercise of religion lies at the heart of narratives of American values and of pivotal constitutional and human rights. Yet unlimited deference to individual free exercise of self-professed beliefs would destroy shared laws and benefits. Because the Supreme Court has extended religious freedom to closely held private corporations, employers who have religious objections to some healthcare benefits may demand accommodation. And because the United States relies on private employers as a key vehicle for providing health insurance, public policies governing health insurance can collide with private employer views. If government healthcare policies do not attend to the independent interests of employees—here, notably, women employees—will their otherwise-assured healthcare coverage be subordinated to the religious views of the employers? This question presses to the limits of adjudication. It forces complex issues into either/or, yes/no questions, obscuring both the impact on unrepresented parties and options offering a third way. And simplistic answers would imperil decades of arduous efforts by many people tackling three areas critical to people’s daily lives: 1) access to birth control and related protection for women’s health, 2) accommodating religious exercise in a pluralistic world that has other competing values, and 3) bringing the United States closer to the standards of universal healthcare coverage dominant in other advanced democracies.

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