United States: Little Sisters, Big Stakes

When the government demands that the Little Sisters of the Poor bend the knee to a mandate that they provide free abortifacients and contraceptives, you can add this to the list of low moments in our nation's religious-liberty history: Baptist preachers flogged and jailed in 1770s Virginia for singing hymns in public or preaching without a state license; Governor Lilburn Boggs's 1838 directive that state police drive Mormons from Missouri or "exterminate" them; General Ulysses S. Grant's 1862 order expelling Jews from Kentucky, Tennessee, and Mississippi for alleged war profiteering; the passage of Blaine Amendments in most state constitutions, to bar "sectarian" Catholic schools from government support; and Oregon's 1922 statute that effectively banned Catholic and other private schools.

The contraceptive-abortifacient mandate.

How did we get here? During the Affordable Care Act (ACA) debates, Senator Barbara Mikulski (D., Md.) proposed an amendment that required employers offering health coverage to provide, at no cost to the employee, "women['s] preventive care." Mikulski said the amendment was about "guarantee[ing] women access to . . . critical preventive services . . . to combat their No. 1 killers." She gave examples including screening for cancer, diabetes, and heart disease. When rumors arose that the mandate for women's preventive care might include abortion, she took the Senate floor:

Alert, alert, alert. We have just been informed that a shrill advocacy group is spreading lies about this amendment. They are saying that because it is prevention, it includes abortion services. There are no abortion services included in the Mikulski amendment. It is screening for diseases that are the biggest killers for women — the silent killers of women. It also provides family planning — but family planning as recognized by other acts. [Emphasis added.]

The Mikulski amendment passed. President Obama acquired the final votes for passing the ACA from Representative Bart Stupak (D., Mich.) and a handful of pro-life Democrats by issuing an executive order that forbade use of government funds for abortion. He signed the ACA into law on March 23, 2010. On August 1, 2011, the Department of Health and Human Services issued an amended interim final regulation that defined "women's preventive services" as including what it euphemistically called "contraceptive services." The "contraceptive" mandate included not only items that prevented conception but also sterilization, abortion-inducing drugs and devices, and related counseling (CASC mandate).

The fine for an employer that excludes such items is $36,500 per employee per year. This compares to a fine of $2,000 per employee per year if the employer provides no health coverage whatsoever. While Mikulski spoke about guaranteeing access to screening for cancer and other life-threatening diseases, this fine structure says the administration was less interested in guaranteeing these critical services than in imposing its sexual agenda. After Cardinal Timothy Dolan, Archbishop William Lori, and other religious leaders complained, the government exempted what it called "religious employers," but it narrowly defined those that qualified. Only houses of worship qualified. These included congregations, denominations, religious orders, and their unincorporated ministries. They excluded religious charities, Christian universities, Catholic hospitals, Christian-owned businesses, and the Little Sisters of the Poor's nursing homes.

On June 28, 2013, the government announced what it called an "accommodation" for such ministries. While purporting to address their religious-liberty concerns, the form that they would have to sign was artfully worded to hijack the employers' health plans, rechristen their third-party administrators (TPAs) as "plan administrators," and require them to provide free CASC services. Contrary to the president's executive order, the government reimbursed these TPAs for their costs and paid them a guaranteed profit. Snatching Hobby Lobby's victory. On June 30, 2014, the Supreme Court exempted Hobby Lobby and other Christian businesses from the CASC mandate because of protections in the Religious Freedom Restoration Act. A year later, the administration stole this victory through a new regulation that reclassified Christian businesses as "eligible organizations" that could invoke the "accommodation" previously limited to non-exempt ministries. This put Christian businesses in the same pool as the Little Sisters of the Poor. If the Little Sisters lose, these businesses lose.

Deceptive language, promises, and premise. The CASC mandate is built on deceptive language, deceptive promises, and a deceptive premise. "Abortifacients" are called "contraceptives." The Little Sisters of the Poor are not religious enough to qualify for the "religious employer" exemption. An accommodation is the act of meeting another's need. Here, a true accommodation would be the act of lifting the mandate that Christian employers find objectionable. But, under the "accommodation," a conscientiously objecting employer must recruit and empower a surrogate, using the employer's own plan, to do that which the employer abhors.

The executive order promised no federal funds for abortion, but the government now reimburses TPAs of religious employers that invoke the "accommodation" through a Rube Goldberg scheme that launders federal funds from the exchanges through straw-man insurance companies. Senator Mikulski similarly promised that her amendment was not about abortion services, but now even the Food and Drug Administration admits that the list of mandated "contraceptives" in her amendment includes abortion-inducing drugs and devices.

The deceptive premise is the government's contention that the CASC mandate will provide contraceptives and abortifacients to poor women. But the mandate is imposed on employers. Employers provide health-care benefits to full-time employees. Most full-time employees already buy the birth control they want. The pill, after all, costs $4 per month at Walmart. If the government was truly concerned about CASC services for the poor, it could accomplish its objective without morally compromising Christian employers. As law professor Mark Rienzi says: "The government can put a man on the moon and mail in my mailbox every day. It can certainly get contraceptives to women as it wishes without the intercession of Catholic nuns." The mandate creating all this fuss, accomplishes little more than forcing conscientious employers to aid and abet sin, as they see it. It is more about power than health care.

Deceptive Argument.

While 85 percent of the United States district courts ruled in favor of the religious objectors, eight of nine United States circuit courts of appeals have ruled against them. The appeals courts reasoned that the "accommodation" does not burden the conscience of the plaintiff ministries. Putting aside the arrogance and constitutional entanglement of a court second-guessing the moral analysis of the Little Sisters, one naturally asks, could eight circuit courts get this wrong? Here's what happened. The government attorneys in the circuit-court cases repeatedly mischaracterized how the "accommodation" worked. In their briefs and oral arguments, they called it an "opt out" — again and again. They told those courts that, when a ministry submitted the accommodation form, CASC services would be delivered not through the ministries' own health plans but through "an alternative mechanism established by the regulations." The government attorneys' briefs said that these ministries "need not place contraceptive coverage into the basket of goods and services [that] constitute their healthcare plan[s]." This was false.

One after another, the circuit courts accepted this argument. They, too, began repeating the phrase "opt out," as though it were a magic formula that erased the Little Sisters' complicity and — presto chango — freed them from any burden. By the time of the Tenth Circuit decision against the Little Sisters, that court's opinion used the "opt out" incantation 123 times. But Solicitor General Donald Verrilli now admits that the government attorneys pushing the "opt out" narrative got this wrong. He writes in his brief to the Supreme Court: "If the objecting employer has a self-insured plan, the contraceptive [CASC] coverage provided by its TPA is, as an ERISA [Employment Retirement Income Security Act of 1974] matter, part of the same ERISA plan as the coverage provided by the employer." Translation: The "accommodation" is not an "opt out," it is a government hijack of ministries' plans that requires ministries' cooperation. It requires their cooperation because CASC services cannot flow through the employer's plan unless the employer itself modifies its plan. ERISA establishes that only an employer can modify its plan. This is why the "accommodation" is a plan amendment masquerading as an "opt out." It is why the final sentence of the form says it "is an instrument under which the plan is operated."

As law professor Michael McConnell argues in his amicus brief for many former Department of Justice officials, handing over one's plan to accomplish an immoral act is analogous to "aiding and abetting" a crime. If a jury can conclude that it is a crime to loan a bank robber one's car, the Little Sisters can conclude that it is sin to loan their health plan to a TPA so it can deliver drugs that kill.

The Legal Stakes.

If the Supreme Court rules against the Little Sisters of the Poor, it will have concluded either that the CASC mandate does not burden their religious exercise, that the government's interest in forcing their complicity is of the highest order, or that there is no less restrictive way to get CASC services to poor women. But the government's interest cannot be of the highest order, because it exempted grandfathered plans from the mandate, and those plans still serve 30 million employees. Also, the mandate that delivers CASC services through ministries' plans is not the mechanism that is least burdensome on the ministries' religious exercise. CASC services can be delivered by other means, including the existing Title X family-planning program, which already has a $280 million annual budget "dedicated solely to providing individuals with comprehensive family planning and related preventive health services."

The Next Chapter.

The ACA presents other serious moral problems for religious employers. It mandates coverage for "clinical trials." Approved trials already include at least two utilizing human embryonic stem cells and seven utilizing tissue harvested from aborted fetuses. The business of selling fetal tissue, as the Center for Medical Progress exposed, is fueled in part by federal law requiring employers to pay for medical services utilizing such tissue. The clinical-trial mandate has neither an exemption for religious employers nor an "accommodation" for non-exempt ministries. The fine for noncompliance is $36,500 per covered employee per year.

There's more. On September 8, 2015, the government issued a proposed rule interpreting the Affordable Care Act's anti-discrimination provisions, including the provision prohibiting sex discrimination. When this rule is made final (likely after the election), it will require employers receiving federal funds to cover surgical abortion and gender-reassignment services and to include same sex spouses among the beneficiaries of their plans. If the Religious Freedom Restoration Act is diminished by an adverse decision of the Supreme Court in Little Sisters of the Poor v. Burwell, religious employers morally opposed to any of an array of mandates — contraceptive, clinical-trial, gender-reassignment — will find it increasingly difficult to do their work without violating their deepest beliefs.

If the Religious Freedom Restoration Act is diminished by an adverse decision of the Supreme Court in Little Sisters of the Poor v. Burwell, religious employers morally opposed to any of an array of mandates — contraceptive, clinical-trial, gender-reassignment — will find it increasingly difficult to do their work without violating their deepest beliefs.

Cross-Posted at: http://www.nationalreview.com/article/433035/little-sisters-poor-burwell-supreme-court-contraceptive-mandate-religious-freedom

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions