Don’t bet on the Little Sisters

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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

Will Justice Anthony Kennedy side with the Little Sisters of the Poor? “Yes” is the consensus conclusion from Wednesday’s oral argument in Zubik v. Burwell, the case to determine whether the government can require religious non-profits that wish to opt out of the Affordable Care Act’s contraception mandate to sign a waiver naming their insurance company or administrator.

The conclusion turns on the use of the word “hijack” by opponents of the government’s position to describe the ACA’s getting Zubik et al.‘s insurers to provide the contraception coverage free of charge. At one point Kennedy, in the words of Scotusblog’s Lyle Denniston, “deployed that word in obvious sympathy to those institutions.”

But any such sympathy must be weighed against competing evidence. And Kennedy, whose position will almost certainly determine whether the Scalia-less court sides with the Obama administration or splits 4-4, gave a clear signal that he will hold to the position he took two years ago in Hobby Lobby, which gave some for-profit companies the right to opt out of the contraception mandate.

Then, in a separate concurrence, he indicated that the waiver arrangement designed for religious non-profits successfully balanced religious liberty and the government interest in providing women with free contraceptive services. “In these cases,” he wrote, “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.”

Here’s his key remark from yesterday: “It’s going to be very difficult for this Court to write an opinion which says that once you have a church organization, you have to treat a religious university the same. I just find that very difficult to write.”

This is key because Zubik is more about institutions of higher learning than about an order of nuns that runs a few dozen old-age homes — though you’d hardly guess that from what the petitioners’ lawyers had to say or from the optics outside the courthouse, where a number of the sisters were thrust before the cameras. Most of the cases consolidated into Zubik involve religious colleges, and you can be sure that if the decision were eventually to give them what they want — the blanket exemption offered to churches and other narrowly religious institutions — then Notre Dame and Georgetown and Boston College would immediately line up for their own blanket exemptions.

What Kennedy was saying is that he’s not prepared to let that happen. And it’s clear that this worried Paul Clement, the wily lead attorney for the petitioners, because it was the issue he returned to in his rebuttal time.

In his Hobby Lobby concurrence, Kennedy could not have been clearer about the importance of the mandate itself. “There are many medical conditions for which pregnancy is contraindicated,” he 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.”

That seems sufficient reason to think he will permit the government to go ahead with the hijacking.

  • George Nixon Shuler

    I certainly hope you’re right. 4-4 lets lower court rulings stand; 5-3 is better.

  • Yes, Kennedy will side with O’bama. The Irish tend to stick together.

  • drwho13

    You’re right! Check it out.

  • I’ll drink a Guinness to that.

  • yoh

    Also a major factor against repeating Hobby Lobby are the legislative changes to the ACA after that decision. Those changes robbed it of any future application. The kind of changes which fall in line with Kennedy’s objections to the contraception mandate from the outset.

    The nuns are toast.

  • Mack

    Catholicism, though not much observed by Catholics, is the largest religious identity group in this nation. If Catholic observances and teachings can be suppressed, all the other identity groups will submit in turn.

    And think of the hospitals, charities, buildings, and other properties for the powerful to seize and then sell or give to their friends.

    Remember how Henry VIII enriched himself rewarded and bought loyalty.

  • Edna

    I certainly hope you are right, Mr. Silk. I think it would be very difficult for Justice Kennedy to completely contradict his Hobby Lobby words. We’ll just have to wait and see.

  • mnemos

    What an odd phrasing here… “There are many medical conditions for which pregnancy is contraindicated,” he 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.”

    The point of the mandate is precisely that contraception AS contraception – that is not as indicated in relation to any other condition – is mandated for coverage.

  • Mikehorn

    We must remember that the rights of the employers are not the only rights in question. The employees have rights, too, the Hobby Lobby case was decided as it was because the law provided a simple method to satisfy both side and leave competing rights intact. This case says that accommodation is insufficient due to the notion of active participation, an ethical part of Catholicism important to them but by no means a settled issue outside Catholic thought. It boils down to the idea that if an action leads to killing it is wrong no matter what the other reasons are, including saving the life of anyone. It is better to let a person die in some circumstances than take action that would certainly kill. This rules out most war and makes the right of self defense very shaky.

    The government has a compelling reason to protect contraceptive availability and prevent religious theology from taking away the rights of others. The nuns should lose.

  • Dr Rosemary Eileen McHugh, MD, MSpir

    Thankyou for this article. I hope you are right. I think Judge Kennedy beautifully expresses the importance of the position of the government in protecting the rights of women employees, and in reducing any unnecessary burdens to the exercise of their rights as American citizens.

  • Mikehorn

    I’m not sure I understand your point. Honest question: are you saying the religious institutions should be able to deny legal care or have access to Doctor-patient information normally protected by privacy acts?

    The only way to ensure that the non-contraceptive uses of the Pill and other things are protected and available when needed is to make those contraceptives available. The only other option is to make public the medical condition for which they are often prescribed. This means patients lose rights to keep medical histories private.

  • MarkE

    But the “nuns” and others don’t want to limit it to cases of “recreational” contraception – they’re of the belief that all contraception, especially the alleged abortifacients, are wrong and their use is against their religious beliefs. Which completely subjugates the health and well-being of the mother to the survival of the fetus . Women who need contraceptives for dysmenoria or other non-pregnancy reasons will have to pay for this all out of pocket, if the “nuns” get their way.

  • Arnold

    How can the sisters’ view (they are not nuns, who are cloistered) regarding contraception subjugate the mother’s well being against the survival of the fetus since in the case of contraception there is no mother (not yet anyway) and no fetus? As for the great burden of purchasing the pill on their own rather than forcing the sisters to provide funding directly or indirectly, are you not aware how inexpensive the Pill is? Why should others be forced to subsidize it? The reason the Obama administration has been so insistent on this with the Little Sisters and others is the desire to crush opposition to its social agenda and make the Sisters compromise their faith or withdraw from the public sector.

  • Arnold

    What is so “burdensome” about having the employees purchase their own birth control? It is not expensive.

  • Dr Rosemary Eileen McHugh

    Can you put yourself in the shoes of a poor woman who may have a handicapped husband and several children? Every penny is important to those who are poor. Please have some compassion.

  • Mikehorn

    Because the main point of the ACA is that preventative care is less expensive than acute care, and keeps people healthier. This lowers medical costs through direct purchases of drugs and doctor visits, as well as resulting in fewer work days missed.

    The medical consensus is that women have unique preventative care needs, to include contraception but also cervical screening and more. If you peel prevention away, you’ve lost one central point of the ACA that helps it work. If those women who couldn’t afford contraception or didn’t get it because it wasn’t covered then got pregnant without planning, that drives up insurance plans across the board, because now the insurance is paying for prenatal, birth, pediatrics, orders of magnitude more.

  • spiff

    To me its simple..almost laughably simple. Object all you want to contraceptives and I’m sure your god will forgive any impugned “sin” you think you are committing by allowing other people to choose if and when they want to have children. If your “god” won’t forgive you for being part of a Democracy, not a Theocracy, then he is not god, and then you don’t have to worry about sinning. The Constitution is the supreme law here, not a religious opinion (and it IS a opinion) clearly created by superstitious, highly uneducated men who were clueless on modern medical needs. And had a VERY clear goal of controlling women, among other things (like science, Earth is flat, silly things like that). Oh and the nuns can keep performing their noble (being sincere) duties of helping the poor with FEDERALLY FUNDED means.

  • BobRN

    Somehow, because the US government says so, people not only have a right to contraceptives and abortifacients, but they have a right to have their employer, for whom they voluntarily chose to work, pay for them, even though they are widely and cheaply available.
    This really isn’t about access to women’s healthcare. If it were, then the government would not be exempting corporations like Pepsi and Visa, or even the military, from the HHS mandate. The fact that these multi-billion dollar corporations are exempt exposes the lie.
    This is about government control. The government resents the fact that there are things it can’t make its citizens do because those citizens are protected by Constitutional rights. The government demands that people of faith succumb to the secular culture. Does anyone think this will end with contraception? If the government can make Catholic sisters pay for birth control, they can certainly force Catholic hospitals to perform abortions, or euthanasia.

  • Mikehorn

    This case nowhere requires the Sisters or other religious to pay for contraceptives. The writers and the courts recognize that would violate their rights. The ACA has a provision that specifically allows the Sisters and others to exempt themselves from the preventative care mandate, so that the insurance company or, if the group is self-insured, a third party entirely takes that part of the coverage away from the employers. The sisters only need to state on a form that they object. In Hobby Lobby, SCOTUS specifically cited this religious accommodation as such a low burden that some secular “closely held”corporations can use it.

    The law, congress, and SCOTUS must balance the rights of all. Employers have rights, but that doesn’t include denying rights to their employees. Their employees retain the right to valid preventive medicine. Some religions sincerely believe insulin and blood transfusions are evil. How far are you willing to let employers decide medical care for…

  • BobRN

    The so-called accommodation is a farce. The only difference between an employer who has no objections and an employer who does is that the employer who objects will be required to write a letter to the government saying, “I object.” The accommodation provides no moral difference, because the insurance will still cover those services and products.
    No one is denying rights to their employees. One of the reasons I’m currently looking for another job is because the health insurance benefits at my current job are pretty bad. But, guess what? I don’t have to work there! I can get a different job, and you can be sure that health insurance benefits will play a major part in what job I accept.
    Your insulin and blood products comparison is apples and oranges. But, I would be interested in knowing what religious tradition regards insulin as evil.
    What surprises me is how many are willing to allow the government to impose itself on their rights, and for so small a gain as access to…

  • BobRN

    So, basically, you’re saying that a working poor woman, in order to spare herself the minor cost of a contraceptive, would rather take the risk of getting pregnant and assuming the extraordinary costs of raising another child.

    You don’t give working poor women much credit for foresight, do you?

  • BobRN

    Consider, too, that the law, the congress, the SCOTUS and the Obama administration are making no effort whatsoever to “balance the rights” of employees of Pepsi, Visa, several other corporations, or the military. The tens of thousands of women who work for these institutions, as far as the government is concerned, have no right to free birth control. But, women who voluntarily apply for and are employed by a community of Catholic women religious must have access to free birth control, and the Sisters must pay for it, for to deny them such, or for the government to pay for it, is a crime against women.
    Why isn’t this sham obvious to everyone? Actually, I think it is. Could it be that those who support the mandate are motivated by an agenda other than women’s access to healthcare?

  • Mikehorn

    Where do you get your info? I’m in the military. Birth control of several kinds is available at no cost to active duty, or dependents. My wife has had a prescription for 15 years, before and after the ACA.

    So, at least part of your claim I know to be false.

    If you are talking about some plans that were grandfathered in to be slowly phased out, that is a separate issue.

    Yes, all citizens of the USA have the right to medical care that has been deemed legal. Under the ACA, some preventive care is even free. So what? The government doesn’t require the Sisters or their employees to take it, though in the Sisters’ case with no children the Pill can prevent some cancers that mothers have a lower risk for. Preventative use of the Pill that isn’t contraceptive to celibate sisters…

  • Mikehorn

    Insulin, antibiotics, more: rejected by Christian Scientists
    Blood Transfusion: rejected by Jehovahs Witnesses
    The Pill: only rejected by the most conservative Catholics, and most clergy
    Polio vaccine, child labor laws, some surgeries: rejected by the Amish

    The list goes on and on. But those believers only have a right to deny themselves available medical care. Parents have treated diabetic children with prayer and herbs. The child dies. The parents go to jail for denying medical care to another. They have exactly zero right to prevent anyone else, even of the same religion, that same medicine. Most Catholics in America are fine with the Pill. The clergy can speak all they want, but cannot deny care to anyone not themselves, theology be damned. America has laws and rights, not theology and clergy.

  • yoh

    You are missing the point entirely. The Sisters are opposing letting their employees pay for their own contraception with their own insurance. They are claiming that stepping aside and letting employees make their own decisions is somehow a burden on their faith. Its a b.s. argument from the get-go and points to a horrific overreach of notions of religious freedom.

    “Why should others be forced to subsidize it?”

    The true argument is “why should we let people subsidize something themselves that we oppose?”

    You are completely incorrect on the basic facts here. There is no compromise of faith because one’s faith does not grant a license and privilege to dictate what others can do on their own.

  • yoh


    The idea here is that the employers are absolved from the penalties of not supplying insurance. In exchange, employees are subsidizing contraception themselves through an outside health insurance policy. A policy not under any control or financial obligation to the employer.

    Maybe you should learn the facts of the case before chiming in with such comments?

  • yoh

    “The accommodation provides no moral difference, because the insurance will still cover those services and products”

    That only washes if you believe the employer has a moral duty to control the activity of an employee outside of the workplace, outside of what they contribute towards or any control. By that right they don’t have to pay employees in currency because it can be used to buy contraceptives, or meat on fridays.

    You are making the farcical claim that the nuns have a right to interject themselves into the lives of their employers in a way which violates any notion of personal privacy or what would constitute their own business.

  • Mikehorn

    Seriously? Employer insurance plans are compensation for work done. The employee earned that as a wage. What is your problem with employees using their insurance as they see fit? Do you think so little of workers that you can’t let them decide their medical care as they see fit, as adult citizens with rights equal to their employers?

    Besides, the existing ACA accommodation removes the religious employer entirely. The Sisters are arguing for an arcane tertiary responsibility somehow inherent in them rejecting coverage in writing.

    If their primary plan doesn’t cover it, then it also wouldn’t cover the doctor visit prescribing it. Or any follow-on appointments to figure out which of the many versions out there is the best fit. It might also require her to see a separate doctor if the plans and practice aren’t compatible.

  • BobRN

    Well, the answer to your concern is simple. If you want your insurance to cover contraceptives and abortifacients, then work for a company whose health benefits cover those. There are plenty. Indeed, the GREAT majority do. Don’t apply or accept a job from the Little Sisters of the Poor. See how easy that is?

  • BobRN

    I do want to thank you for proving my point. Clearly, the US govt doesn’t need the Little Sisters to provide or pay for contraceptives. It’s already doing this for your wife, and has been for several years without involving the Little Sisters.

    I didn’t know that Christian Scientists rejected the use of insulin. That’s bizarre and unfortunate. It’s also unfortunate that I’m forced to work for a company that’s run by the Christian Science church, so I can’t get coverage for several medical conditions I have.

    Wait! What? This is the United States. Where I work isn’t assigned to me by the state. I don’t have to work for the Christian Scientists, and I don’t. Neither do I have to work for the Little Sisters, and I don’t.

    I don’t see any reasons to go on. You’re ok with this action of the govt, probably because it’s about religious freedom. Be aware that tomorrow it may be about something you do…

  • yoh

    Glad to know that even you think the argument concerning religious freedom here is nonsense as well. Hence your unwillingness to defend it based on facts here.

    Better yet, employers can follow the laws that apply to them and try to make sensible and rational arguments why an exception should be made for them. ACA is the law and the challenges against it in litigation have come up empty.

    Funny how conservatives constantly insult the judiciary as “judicial activists” when they strike down stuff they like but not when they attempt to strike down other legislation they don’t.

  • Mikehorn

    Yes, and black people don’t have to work for racists, atheists for anyone religious.

    You don’t understand Rights and the role government plays in ensuring them. The Sisters argue against valid medical treatment on religious grounds – they sincerely believe some drugs are abortifacients with zero scientific data, and object to all contraception on religious grounds, not medical.

    An employee does not give up religious freedom when they take a job. They are not required to practice their boss’s faith. It’s one of the few freedoms guaranteed even to military, who live under the more restrictive Uniform Code of Military Justice, which does limit speech, association, movement, and action, but not religion.

    The government protects and balances the rights of all. That’s why Religious discrimination arguments fail. Employees’ religious freedom counts and as the weaker party, the government acts as protector of employee rights, too.

    The existing accommodation letter is a…

  • If the Obama HHS mandate and huge fines are made to stand by the Supreme Court, then Catholic colleges, hospitals, nursing homes, schools and the EWTN-TV network will be forced to close. IT WILL BE THE END OF FREEDOM OF RELIGION IN THE U.S. – THE END OF CATHOLIC CHARITABLE AGENCIES FOR THE POOR IN AMERICA. This denomination can not afford the huge fines! For example, the nursing nuns are being fined $2.5 million, The Catholic TV Network EWTN is being fined $350,000 per day. Catholic non-profit agencies can not afford to operate in a country where the government steals that much money from them – much of it donated by American citizens. The American way of life I grew up in is finished. The country will be in the hands of the anti-Christ. God will not support or bless a government that acts so cruel against His faith! Read what it says in the Bible. There will be calamities. The Bible warns against persecuting the religion of Our Lord. Right at the beginning in Genesis 12:3 it states,…

  • The Bible warns against persecuting the religion of Our Lord. Right at the beginning in Genesis 12:3 it states, “I will bless those who bless you.” In Isaiah here is a message for those who legislate evil. Isaiah 10 1-4:
    Doom to you who legislate evil,
    who make laws that make victims—
    Laws that make misery for the poor,
    that rob my destitute people of dignity,
    Exploiting defenseless widows,
    taking advantage of homeless children.
    What will you have to say on Judgment Day,
    when Doomsday arrives out of the blue?
    Who will you get to help you?
    What good will your money do you?
    A sorry sight you’ll be then, huddled with the prisoners,
    or just some corpses stacked in the street.
    Even after all this, God is still angry,
    his fist still raised, ready to hit them again. (From The Message Bible)

  • Five Catholic adoptions agencies have already been forced to close in CA, IL, MA, NY and DC. God will not bless a government that acts so cruel against His faith and steals money from religious agencies that do good. Without religious morals a nation can not survive. It implodes from corruption which we can already see happening in the U.S. Christians are being targeted and fined and put in jail. A two minute call that was recorded and given to a judge made the judge fine a Christian business couple $13,000. for expressing their beliefs during the bated phone call. That is fascist Hitler-ism at its worst. The leftist leaning U.S. media is not helping protect religious freedom. What excuse will they give. The following Pro-life message is for them: Proverbs 24: “Rescue the perishing; don’t hesitate to step in. If you say, “Hey, that’s none of my business,” will that get you off the hook? Someone is watching you closely you know — Someone not impressed with weak excuses.”

  • Dimitri Cavalli

    Well big f****** deal if women have to pay for their own contraception, which is already inexpensive. (Keep in mind that contraception doesn’t prevent STD transmission.)

    Being a grown-up means managing your money properly and saving for what you want and what you need.

    Can you imagine telling feminist employers that they have to pay for employee’s breast enlargement and liposuction?

  • Dimitri Cavalli

    You seem to know a lot about this family.

    If this woman’s husband is “handicapped,” then how is he able to still perform sexually?

    Get some common sense and use more credible examples.

  • Dimitri Cavalli

    In the National Archives in College Park, Maryland, I read about this Catholic hospital in Trier, Germany that drew the wrath of the Nazis because it refused, for religious reasons, to perform sterilizations.