Ethics & Religion
May 19, 2016
Column #1,812
"Little Sisters" Win in Supreme Court
By Mike McManus

The Supreme 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 religion.
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 penalties.

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 military families!

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.