May 19, 2016
"Little Sisters" Win in Supreme Court
By Mike McManus
Court took a rare step several weeks ago asking both sides in a conflict
to submit supplemental briefs on whether a compromise between the
parties was possible. The dispute was between the Affordable Care Act's
requirement that employee health plans cover contraceptives,
sterilization and abortifacients vs. objections by religious groups such
as the Little Sisters of the Poor who felt it violated their freedom of
Both sides submitted briefs agreeing that a compromise was possible!
Therefore the Court unanimously concluded, "Given the gravity of the
dispute and the substantial clarification and refinement in the
positions of the parties, the parties...should be afforded an
opportunity to arrive at an approach going forward that accommodates
petitioners' religious objections while at the same time ensuring that
women covered by petitioners' health plans `receive full and equal
coverage, including contraceptive coverage,'" the court said, quoting
from the brief filed by the government. It also sent the case, Zubick v.
Burwell, back to lower courts to work out the details.
"It's a win-win agreement," said Daniel Blomberg, an attorney for the
Becket Fund which argued on behalf of the Little Sisters and other
clients such as Southern Baptist groups, the Catholic Archbishop of
Washington, Geneva College and other universities. "The Little Sisters
get out of massive fines of $70 million a year, and their freedom of
religion is accommodated. It also vacates 8 of 9 lower court decisions
that had gone the wrong way - and yet allows women to get the drugs they
are seeking," he added.
Russell Moore, president of the Ethics & Religious Liberty Commission of
the Southern Baptist Convention, commented: "On this day, we should be
encouraged by this unanimous ruling which forbids the government to
bully these organizations out of existence through crippling fines and
The Affordable Care Act (Obamacare) required virtually all employers to
provide not only free contraception, but sterilization, "morning after
pills" that would kill an embryo in the womb, plus abortions themselves.
With the death of Justice Antonin Scalia, many believe the Court
initially voted 4-4, a tie that would have left the issue unresolved
until a new Justice is confirmed.
The Little Sisters of the Poor probably do not have many employees who
would be interested in such services as contraceptives and
abortifacients, since few nuns are sexually active! The group serves
13,000 elderly poor in 31 countries including 30 homes in America. Its
first home opened in 1868.
However, the government did make an exception for employees of houses of
worship, but refused to make a similar exception for religious
non-profit groups such as Little Sisters, Southern Nazarene University
and Christian Brothers Services. Oddly, the government also exempts one
in three Americans, such as the employees of Exxon, Visa and even
Yet the government proposed an earlier compromise that would require
Little Sisters and others to find an insurer who will cover all of the
things they oppose such as sterilization and contraceptives - in
addition to usual health care services. The Little Sisters objected that
this violated their convictions.
The Becket Fund attorneys argued that the government has other ways to
fund the services it wants to provide. It could provide insurance
coverage through its own exchanges for contraceptive-type services, or
contract with health insurance providers to do so, without the
involvement of religious non-profit groups.
Presumably, these details will be worked out by the nine lower courts
which handled the original cases.
Interestingly, the White House said it welcomed the Court's decision:
"It will allow millions of women across the country to continue to get
the health coverage that they need," said Josh Earnest, the President's
press secretary. He added that the White House was "gratified" because
the decision proved it was possible to prioritize health care while
maintaining religious liberty for everyone.
What's puzzling is that the Administration did not learn a lesson from
an almost identical 2015 Supreme Court ruling involving Hobby Lobby, a
closely held for-profit corporation whose owners believe that life
begins at conception, and that it would violate their religion to
facilitate employee access to contraceptive drugs or devices that would
kill an embryo.
The Court concluded that the federal mandate violated the Religious
Freedom Restoration Act, because it would impose a substantial burden if
Hobby Lobby refused to violate its beliefs by being forced to pay $475
million in fines.
The Little Sisters would have been fined $70 million annually.
That's a high price for religious liberty!
Copyright (c) 2016 Michael J. McManus is President of Marriage Savers
and a syndicated columnist. Earlier columns can be seen at
www.ethicsandreligion.com. Hit Search for any topic.
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