The Little Sisters will lose

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Logo of Little Sisters of the Poor

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Logo of Little Sisters of the Poor

Logo of Little Sisters of the Poor

Logo of Little Sisters of the Poor

In the Supreme Court, that is. How do I know this? OK, let’s back up.

In the biggest decision of its 2013-2014 term, the Supreme Court decided 5-4 that a for-profit corporation which objects to provisions of a federal law as impairing its religious freedom is entitled to an accommodation under the 1993 Religious Freedom Restoration Act (RFRA). The case at hand involved the Affordable Care Act’s mandate that employee health insurance plans provide women with free contraceptive care.

Under rules developed by the Department of Health and Human Services, strictly religious organizations like churches were exempted from the mandate. The idea was that such women who worked for such organizations were likely to belong to the religious body in question and in any event could be expected to embrace or at least conform to its beliefs and practices.

By contrast, religiously affiliated non-profits like the University of Notre Dame and the Little Sisters of the Poor (an order of nuns that runs a couple of dozen nursing homes) received an accommodation, under which they are supposed to fill out a form for the government stating that they object to the contraception mandate. The government will then tell their insurance company to provide their women employees with the free coverage at the company’s expense. The idea is that employees of such non-profits cannot be expected to hew to the religious principles of the religious body with which they are affiliated.

In Hobby Lobby, the Court told the Obama administration to give a “closely held” for-profit that demonstrates a bona fide religious commitment the same accommodation it provides to a religious non-profit. In his majority opinion, Justice Samuel Alito left open the question of whether the accommodation was itself sufficient. Faced with a difference of opinion at the appellate level, the Court last Friday agreed to take up that question.

The Little Sisters, Notre Dame, et al. claim that filling out the government waiver makes them responsible for — or as Aristotle and Aquinas would have said, the final cause of — practices they find religiously intolerable. What they want is the complete exemption afforded to churches.

They won’t get it.

RFRA says that religious objections to a federal law can be overturned only if the government has a compelling interest in doing so. In Hobby Lobby, Justice Anthony Kennedy became the majority’s crucial fifth vote with the help of a concurrence declaring that indeed to be the case. “There are many medical conditions for which pregnancy is contraindicated,” Kennedy wrote. “It is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.”

And the Kennedy concurrence finds the accommodation for religious non-profits to be a valid means of reconciling that compelling interest with religious liberty: “In these cases the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here.”

Just as Kennedy stuck with his earlier positions on gay rights and voted in favor of a constitutional right to same-sex marriage last June, so he will stick with these dicta and provide the crucial fifth vote to uphold the Obama administration’s non- (and for-) profit accommodation of the contraception mandate.

  • No, Bernardo. I only prophesy on this issue: http://bit.ly/1mNF4bV.

  • The little sisters should read Paul. Unless they are being forced to use birth control the issue doesn’t include them. Government and religious law are separate and should not be intertwined. If a government law will not include you in practice then your beliefs are not in question. Saying ones beliefs prevent them from following a government law ONLY applies if it forces you to conform. There is nothing that implies Obamacare is going to make the sisters take a birth control pill. Trying to prevent a woman from getting contraception, a right by government law is in itself a sin. Come on sisters read your bible.

  • Larry

    The Little Sisters have made patently frivolous arguments. The accommodation of employees obtaining and paying their own contraception coverage is more than reasonable. The demand that employers have a say in the personal lives of their employees outside of work related issues is beyond ridiculous. (Also clear proof that most libertarians consider corporations people deserving of rights but flesh and blood ones do not).

    The only reason they made it this far in litigation is undue deference given to political opponents of the ACA. If anything they should be sanctioned for wasting the time and resources of several courts.

  • M8lsem Nanabedoko

    All the Little Sisters and like organizations are being required to do is state their opinion. I do not think they are ashamed of their opinion, or are reluctant to announce it. Their objection is to how another person/entity will react to their announcement. They cannot control the government. They cannot tell the government what to do, or what not to do. They are required by law to announce their stance to the government. Their role ends there. Their responsibility ends there. That the government will do something they disapprove of is not within their control and responsibility.

  • Cicero

    Whether you or I think that the signing the waiver request is an act of commission thereby making the Little Sisters complicit in the act of providing abortifacts is irrelevant.

    There are only two questions that need to be asked:

    1: Do the Little Sister’s believe that they are being forced to become complicit in something their religion forbids?

    2: Can the Government accomplish it’s goals with a less intrusive means?

    The answer tot he first is yes, so really it comes down to the second question. And there the Little Sister’s have a strong case.

    Firstly, 99% of American women say they have access to birth control prior to the ACA. This suggests that negating the ACA will not material injure women in their ability to access birth control.

    Secondly, if women were still unable to get birth control, the government could simply provide reimbursements directly to women purchasing birth control, rather than requiring the Little Sister’s to sigh a waiver.

    That will…

  • Larry

    That was an opinion completely bereft of the facts of the matter.

    1. No they don’t believe they are being complicit in something their religion forbids. They certainly didn’t in the past when their insurance plan used to cover contraception, prior to the ACA. Their objection is purely politically motivated.

    2. The government is accomplishing its goals in the least intrusive way possible here by putting the onus on obtaining the contraception on the employee. The Nuns are not paying for the services, not providing it, not doing anything other than stepping aside for employees to make their own decisions. Waiving a duty to provide insurance.

    “Firstly, 99% of American women say they have access to birth control prior to the ACA. ”

    Cite a source for that. If it were true, there would not have been the lobby to include contraception into minimum coverage for the ACA insurers. The alternate insurers are giving contraception for free because it is a net gain for them…

  • samuel johnston

    Another way to look at this question can be based on fundamental legal concepts. Taxes are for all citizens. No one can refuse to pay taxes based on his/her objection to how the taxes are used. In their attempt to accommodate religious zealots, the Congress and the Supreme Court have taken the issue and convoluted beyond understanding. Time to make the Supreme Court less Catholic, and more representative of the general population.

  • Christians..go read your bible. START WITH RELIGIOUS LAW VS. GOVERNMENTAL LAW. I’ll help you. I think Paul expressed it the best. Religious law is separate from government law. The two must be kept separate. One can follow government law without jeopardizing their belief as long as they are not forced to take part. The good sisters and that Davis woman must not be forced to take birth control or stand up or be involved in a gay wedding. Simply following government law is no sin. HOWEVER trying to influence government law with their religious law is forbidden. I can’t believe the sisters haven’t read Paul..geeze he was the first pope. As for Davis..she is just stupid and found even more stupid people i.e.Cruz.