Ethics & Religion
March 24, 2016
Column #1,804
Government vs. Little Sisters of the Poor
By Mike McManus

The Supreme Court heard an unusual case Wednesday pitting the U.S. Government against the Little Sisters of the Poor and dozens of other religious and educational groups.

The Little Sisters, who care for the elderly poor, objected to the Department of Health & Human Services mandating that they provide contraceptives that cause abortions, which would violate their conscience.

Nearly two years ago, the Court ruled that for-profit businesses such as Hobby Lobby did not have to provide abortifacient drugs which violated the conscience of corporate owners. Of course, there are many more non-profit religiously motivated organizations like the Little Sisters - religious universities, dioceses, mission groups.

So the government modified its rules to allow groups like the Little Sisters to oppose providing services which violated their consciences - but required that their insurance companies give their employees free contraceptives and post-conception drugs that abort a baby in the womb.

Not surprisingly, the Little Sisters objected to the HHS "accommodation," saying that it still forced them to participate in the process of providing abortion-causing drugs - with the threat of a fine of $100 per day per employee that would cost millions. It would bankrupt most non-profits and put them out of business.

In fact, Chief Justice John Roberts told Solicitor General Donald Verrilli that it sounded like the Little Sisters were "accurate" in describing this as a "hijacking" in which they would be forced to provide services which "they think that complicity is sinful."

Justice Anthony Kennedy told the Solicitor General, "You're saying, 'Don't worry, religions, you're not complicit.'"

His sarcasm did not ruffle Verrilli's feathers. The Solicitor General, the government's top lawyer, said the law in question, the Religious Freedom Restoration Act, that was passed overwhelmingly by Congress and signed by President Clinton, simply required the government to offer "less restrictive alternatives." That's what government offered religious groups who could step aside, based on their convictions, and let their insurance companies provide the services.

The liberal justices sneered in a different way. Justice Sonia Sotomayor said, "Every believer that's ever come before us...are saying that my soul will be damned in some way."

That was even too much for Justice Ruth Bader Ginsburg who said, "No one doubts for a moment the sincerity of the belief of your client and all the others. And since the sincerity of their belief is accepted, it's off the table."

The Government has told churches that they are not required to provide contraceptive services. It has even exempted large, secular corporations such as Chevron, Exxon, Visa, and Pepsi! Yet it insisted that the HHS mandate requirement of the Little Sisters was reasonable.

Travis Weber of the Family Research Council concluded "If the government is given this power to intrude into private religious affairs and decide the question of what is religious, it will become more acceptable to have more activity regulated in the public sphere by government and less in the private sphere by organizations."

Paul Clement, who argued the case for Little Sisters and others summed up his case best in the closing line of his rebuttal argument: "My client would love to be a conscientious objector. The government insists that they be a conscientious collaborator."

Justice Samuel Alito suggested that the service could be provided by the Exchanges set up by Obamacare. Employees of religious groups who wanted free contraceptive could get them from government Exchanges - without any involvement of Little Sisters and similar groups. "Why wouldn't that be a less restrictive alternative?" he asked. "What type of a burden does that impose? A woman who wants to get free contraceptive coverage simply has to sign up for that on one of the Exchanges."

Alito added, "So she'll have to have two insurance cards instead of one. She'll have one from the employer, and she'll have one from the plan, just as a lot of people have one insurance card for medical services and one for prescriptions."

That's a very reasonable suggestion on what ought to happen. However, with the death of Justice Scalia, it appears quite likely that the Court will be stalemated with a 4-4 vote. The Court could postpone a decision until a new Justice is confirmed.

More likely, a 4-4 decision will return the case to lower courts, which voted 8-1 in favor of the government. Justice Alito said the losers would not just be "Catholics and Baptists and Evangelicals, but Orthodox Jews, Muslim groups, the Church of Jesus Christ of Latter Day Saints, an Indian tribe...have said this presents an unprecedented threat to religious liberty in this country."

He's right.

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Copyright (c) 2016 Michael J. McManus is President of Marriage Savers and a syndicated columnist. To see past columns go to www.ethicsandreligion.com and hit Search for any topic.