Judge again attempts to compel Little Sisters of the Poor to provide birth control

To put it bluntly, the decision in Commonwealth of Pennsylvania and State of New Jersey v. Trump, Kennedy, et al., filed on August 13, 2025, is a travesty.

Blatantly ignoring two Supreme Court cases to the contrary—in 2016 and 2020—upholding the rights of the Little Sisters of the Poor, a federal trial court judge, as she did previously, invalidated the religious and moral exemptions the Trump administration put in place in 2017 by the inaptly named Affordable Care Act’s contraception mandate.

Trampling the First Amendment rights of the Little Sisters to the free exercise of religion, the judge ordered them to provide for contraceptives, including abortifacients, in their healthcare plans or face significant fines.

In light of the serious threat to religious freedom this order poses, this column summarizes the dispute’s history before reflecting on its impact and why it is likely to be struck down on appeal.

Trump et al.

The original so-called Affordable Care Act required employers, including nonprofit organizations such as the Little Sisters, whose ministry has been caring for the elderly poor since their founding in 1839, to pay for contraceptives, including abortifacients, in their employees’ health insurance plans. The Act deceptively described this requirement as an “essential health benefit” using the euphemism “preventative and wellness services.” Remarkably, abortion proponents refer to these medications as healthcare. They clearly disregard the well-being of innocent lives in the womb in killing the most innocent and defenseless among us.

The Act’s original mandate granted many exemptions, but not for religious organizations and orders such as the Little Sisters. As controversy emerged in 2016, the Supreme Court ruled in favor of the Sisters and other organizations, exempting them from the disputed provision. Solidifying this judgment, in 2017, the Trump administration promulgated a regulation granting religious and moral exemptions from the contraception mandate that was challenged almost immediately.

Subsequently, in 2020, in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, in a 7-2 judgment in which Justices Kagan and Breyer, ordinarily pro-abortion advocates, concurred, upheld the 2017 regulation. The 2017 trial court opinion in the original round of litigation in Pennsylvania striking down the Trump exemption, in which the Little Sisters were not named, was written by Judge Wendy Beetlestone.

Appointed by President Obama, Beetlestone is the author of the opinion in Trump et al. She argued that she could not imagine an exception that “intrude[d]’ more in the lives of women.” Too bad the judge did not demonstrate such concern for the rights of the (young) women who were not allowed to be born, whether because the mothers used birth control medications or had abortions.

Officials in Pennsylvania and New Jersey, joined by California, Massachusetts, New York, and other pro-abortion jurisdictions, continued to challenge the process by which the 2017 regulation was adopted. Without so much as conducting a hearing at which the Little Sisters’ attorneys could speak, Beetlestone, now chief judge for the Eastern District of Pennsylvania, invalidated the rules as “arbitrary and capricious” in violation of the federal APA or Administrative Procedures Act’s notice-and-comment requirement.

The judge grounded her opinion in the procedural rather than substantive argument that the APA was exempted from the recent Supreme Court ban on nationwide injunctions. Judge Beetlestone argued that the 2017 regulation “greatly expanded that exemption and accommodation framework,” adding it would “allow more entities to stop providing contraceptive coverage, which will result in more women residents seeking contraceptive care through State-funded programs,” vacating them “in their entirety.”

Reflection and analysis

In disagreeing with a federal regulation and Supreme Court precedent, Judge Beetlestone disregarded the fact that the regulation was designed to ensure the religious freedom rights of the Little Sisters and other organizations dedicated to preserving the sanctity of life of the unborn in the safety of their mothers’ wombs. As such, it is important to place the judicial activism revealed in her universal injunction in context.

This Obama-appointed jurist’s order stands in stark contrast to Chief Justice Roberts’ 2018 statement that “[w]e do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

As edifying as Roberts’ words might sound, they are belied by the fact that a very different picture to the contrary emerges in a 2024 article in Harvard Law Review. According to this study of “the 64 nationwide injunctions issued against Trump policies, only 5 were issued by judges appointed by a Republican, leaving 92.2% of injunctions issued by a judge appointed by a Democrat.” A March 2025 report from the Congressional Research Service confirmed and added to these numbers.

Moreover, as reflected in the lawfare against the second Trump administration, through early August 2025, federal trial court judges issued at least 110 nationwide injunctions. During Trump’s first administration, courts handed down 64 such orders out of the total of 127 nationwide injunctions issued since 1963. The 127 total consists of six against George W. Bush, twelve against Obama, sixty-four against the first Trump Administration, and fourteen from the first three years of the Biden administration.

Because of this, the United States is at risk of becoming subject to an “imperial Judiciary” seeking to dominate the other coequal branches of government that Justice Barrett decried in her majority opinion in Trump v. CASA, largely banning this practice.

Regardless of the issue at hand, federal trial court judges must do two things. First, jurists must restrict their orders to their districts within their jurisdictions. Second, echoing Chief Justice Roberts’ notion that judges must be umpires, not rule makers, unelected federal jurists must put the law and religious freedom ahead of ideology, especially when disputes involve the left’s most sacred “sacrament”: abortion.

The important underlying principle in Trump et al. is the significance of defending a fundamental American right: religious freedom. Yet abortion supporters go to great lengths to force their will on believers by working to coerce faith-based organizations to violate their sincerely held beliefs in the need to protect the lives of the unborn. It is also troubling that Americans have to seek a governmental exemption from an Act that substantially burdens their right to religious freedom by requiring them to violate their deeply held pro-life beliefs by dispensing birth control pills, including abortifacients.

When Trump et al. is appealed, it is imperative for the judiciary to safeguard the religious freedom rights of the Little Sisters and other such organizations. If the Third Circuit fails to reverse in favor of the Little Sisters, the Supreme Court, under the direction of Chief Justice John Roberts (who has not always been willing to rein in lower courts), must set limits. Should it get that far, the Supreme Court should build on its earlier precedent in litigation involving the Little Sisters by emphasizing that these unconstitutional universal injunctions, especially those attacking religious freedom, are unacceptable.

In sum, universal injunctions, as in Trump et al., are inappropriate because they have the impermissible effect of trammeling believers’ First Amendment religious freedoms. But also, even more importantly, they seek to compel them to violate their God-given rights to live in accord with their faiths by protecting the unborn.