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

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