From – nationalreview.com – By David French
On March 23, the Supreme Court will hear oral arguments in the Little Sisters of the Poor’s legal challenge to the Obama administration’s so-called religious “accommodation” to its contraceptive mandate. The Sisters are a group of nuns who’ve dedicated themselves to serving the elderly poor. They — along with numerous other religious organizations — are challenging their required role in facilitating their employees’ access to free contraceptives, including contraceptives that can function as abortifacients. The stakes of the case extend far beyond access to contraceptives. The Court’s holding could reaffirm America’s historic commitment to religious liberty or restrict its free exercise for decades to come.
What Are the Sisters Challenging?
First, it’s important to understand that the Sisters are not challenging a law passed by Congress. Instead, the contraception mandate is a rule concocted by bureaucrats. When Congress passed Obamacare it intentionally passed the statute with a number of vague directives that the Department of Health and Human Services (HHS) interpreted and expanded through the regulatory rulemaking process. Thus, the Obamacare statute itself does not contain a contraceptive mandate. Instead, it merely requires employers to “provide coverage” for “preventive services” for women, including “preventive care.”
Through the regulatory rulemaking process, the HHS used those provisions of Obamacare to justify the now-famous contraceptive mandate, requiring employer-provided health plans to provide multiple forms of contraceptives — including some that act as abortifacients — to its employees at no cost.
While HHS trumpeted its new rule as a great advance for women’s health, it exempted vast numbers of employers from its requirements — sometimes for mere convenience. It grandfathered existing plans that did not cover contraceptives, exempted small firms, and exempted “religious employers.” Together, these exemptions mean that companies employing tens of millions of employees are not subject to the mandate.
Curiously, however, even as HHS exempted “religious employers,” it defined the term so narrowly that it applied mainly to entities such as churches and synagogues, not to religious schools, hospitals, or charities — entities that are motivated by faith, often require employees to share the organization’s faith commitment, and ordinarily receive much the same level of religious-freedom protection as houses of worship.
In response to a public outcry, HHS ultimately decided to give these additional religious employers an “accommodation.” The accommodation has changed in response to litigation and political pressure, but in its present form, it requires the Sisters and other religious employers to comply with the mandate, but allows them to do so by filing a form or writing HHS to inform it “not only of [the employer’s] religious objection, but also of the ‘name and type’ of its plan and ‘the name and contact information for any of the plan’s third party administrators and health insurance issuers. In addition, “the employer also ‘must provide updated information’ to HHS ‘if there is a change in any of th[at] information.’”
Once the form is filed, HHS notifies the employer’s insurer that it is required to provide contraceptive coverage at no charge to the employee. In other words, the form (or letter) triggers the free coverage.
What’s the Big Deal About Filing a Form?
That question, in essence, is the heart of the Left’s public argument. This is just a case about a form, they say, and filling out a form — that doesn’t require the Sisters or any other religious employer to pay for the contraceptives — can’t possibly constitute a legally recognizable burden on religious liberty. In the earlier Hobby Lobby case, the company had to pay for contraceptive coverage. Here, the Sisters don’t have to pay. They can “opt out.”
The Sisters counter by noting a crucial fact — HHS still requires the Sisters to participate in the process of providing contraceptives even if that process does not include payment. They’re required to facilitate the provision of abortifacients and other contraceptives by providing the government with ongoing access to updated insurance information. Other religious employers, such as churches, don’t have to participate in the process at all. They don’t file forms. They don’t notify the government. They simply provide health plans in accordance with their religious beliefs.
Moreover, if the Sisters don’t participate in the process, they’re subject to the same kinds of ruinous fines that would apply to any other employer. So, for religious employers, the stakes are high indeed — participate in the Obama administration’s process for providing abortifacients and contraceptives, or be driven out of business.
What Are the Sisters’ Legal Arguments?
This case is being argued under the Religious Freedom Restoration Act (RFRA) — a federal statute — not the First Amendment. Bill Clinton signed RFRA into law after the Supreme Court gutted the First Amendment’s free-exercise clause, striking down the traditional legal test and affording much less protection for religious liberty. RFRA represented Congress’s attempt to essentially overrule the Supreme Court.
Under RFRA, if a federal law substantially burdens the free exercise of religion, it can only be enforced if it represents the “least restrictive means” of advancing a “compelling government interest.” The Sisters and their fellow petitioners argue that the government’s case fails on each part of the legal test.
First, the Sisters’ argue that the regulations substantially burden their free exercise because the mandate conflicts with their sincerely held beliefs, and the consequence of disobedience is financial ruin. The administration’s message is harsh and clear — comply or go out of business.
Moreover, the Sisters also note that the government can hardly state that it has a “compelling” interest in providing women with free contraceptives when it has put in place broad exemptions that affect tens of millions of women — even for employers that don’t have faith-based objections to the law. As the Sisters state in their Supreme Court brief:
The government has truly exempted — not merely “accommodated” — countless other employers from that same mandate, some for reasons as trifling as administrative convenience, and others because even HHS recognizes that its mandate violates sincerely held religious beliefs. Yet the government refuses to do the same for petitioners, notwithstanding their concededly sincere religious objections. If that does not violate RFRA, then it is hard to see what does.
Finally, the Sisters argue, the Obama administration has hardly chosen the “least restrictive means” of enforcing its interest in providing women with free contraceptives. Women have other options. The administration has spent billions of dollars establishing insurance exchanges, and employees seeking contraceptive coverage can easily obtain such insurance through an exchange. In other words,
The government cannot explain why those exchanges suffice to advance its goal of getting contraceptive coverage to the tens of millions of people who may not get it from their exempt employers or are not employed at all, yet are not good enough when it comes to the few thousand employees who work for petitioners.
What Are the Obama Administration’s Legal Arguments?
HHS calls the accommodation an “opt out” and argues that the required written notice effectively “relieves the employer of any duty to provide contraceptive coverage.” It characterizes the Sisters’ argument as little more than asserting a religious objection to the “government’s arrangements with third parties.” In other words, it is describing the Sisters’ objection not as an objection to their own part in the HHS process but rather as an objection to the government’s working to provide their employees with free contraceptives.
Further, the Obama administration disputes the Sisters’ arguments that the many exceptions to the mandate undermine the alleged compelling governmental interest by noting that multiple statutes, including civil-rights statutes, contain exceptions but have been held to advance compelling state interests. In addition, HHS argues that the compelling interest is confirmed by extensive medical evidence demonstrating that contraceptives are an essential component of women’s health care.
Finally, the Obama administration argues that its notice requirement represents the “least restrictive means” of accomplishing its purpose because it allows the Sisters’ employees to obtain coverage seamlessly within the context of their current plans, while other options would cause burdens to both employees and the government. The Court, the administration argues, must take account of the burden on the Sisters’ female employees, and the woman’s burden of paying for the pill is much more severe than the Sisters’ burden of filing a form.
Aren’t There Only Eight Supreme Court Justices?
What if The Vote is 4–4? A tie vote is essentially a non-event. It has no precedential value, and it leaves the lower court decision intact. Since the lower court ruled against the Sisters, that would mean they’d lose — at least for the time being. If the court does deadlock, it’s highly likely the case would be reargued following confirmation of a ninth justice.
The Third, Fifth, and Tenth Circuit courts of appeal have held that the HHS accommodation does not substantially burden religious employers’ free exercise of religion and have ruled against religious employers. The Eighth Circuit has gone the other way, ruling for two religious colleges. So a tie would preserve the confused status quo, with different religious entities in separate states living under different legal regimes.
As is often the case, all eyes will be on Justice Anthony Kennedy. He’s the most likely swing voter on the court, and thus the most likely source of a 5–3 decision against the Sisters. While it’s unlikely any of the court’s “liberal four” will rule for religious liberty over the sexual revolution, Justice Stephen Breyer is arguably the most likely to break ranks.
What Are the Stakes?
This case is about far more than free contraceptives for employees at religious nonprofits. At its heart, it’s about the place of religious conscience in American life. If a group of Catholic nuns can be dragooned into facilitating the sexual revolution because bureaucratic rulemaking trumps essential civil liberties, then religious freedom as a distinct American freedom is nearly extinguished.
At its heart, it’s about the place of religious conscience in American life.
For all the Obama administration’s rhetoric about “women’s health,” the contraceptive mandate was deemed so unimportant that it wasn’t even included in the text of the Obamacare statute itself. It was a regulatory add-on, a bureaucratic addition that can be revoked by the next administration just as easily as it was enacted. In other words, the Obama administration is challenging the exercise of one of America’s foundational liberties to protect a “right” (the right to free abortifacients and other contraceptives) that did not exist five years ago and may not exist next year.
If the Sisters win, by contrast, it will largely preserve the status quo — where RFRA acts as a last line of defense for religious liberties once taken for granted. For all the Left’s apocalyptic rhetoric about the case, the Sisters are not trying to break new ground but rather to preserve the old — the same ground carved out for the faithful by the Founding Fathers.