March 24, 2016
Government vs. Little Sisters of the Poor
By Mike McManus
Court heard an unusual case Wednesday pitting the U.S. Government
against the Little Sisters of the Poor and dozens of other religious and
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
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."
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.
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