The ongoing legal challenge by religious organizations against the Obama Administration’s abortion-pill Mandate and its so-called “accommodation” for complying with that Mandate has taken some unexpected turns.
The Supreme Court heard oral arguments just one month ago, and one week after those arguments, the Court took a highly unusual step. It asked the parties to address whether employees of the objecting organizations could obtain contraceptive coverage through the organizations’ insurance companies in a way that does not require the involvement of these organizations “beyond their own decision to provide health insurance without contraceptive coverage to their employees.”
In other words, is there a way that the government’s alleged interests can be fulfilled that does not require the Little Sisters of the Poor, for example, to be complicit in what they believe to be a serious moral wrong?
The Court specifically asked the parties to consider a situation where the objecting organizations “would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees.” All they would have to do is tell their insurance company that they desire an insurance plan that does not provide the drugs or services to which they religiously object. Based on this information, the insurance company will notify the employees that it will provide them with contraceptive coverage at no cost, and that such coverage is not paid for by their employer and is not provided through the employer’s health plan.
Last week, the parties completed the additional briefing requested by the Court. The difference in substance and tone between the briefs of the religious groups and the government reveals a great deal.
According to the religious organizations, of course there is a way the government can achieve its goals (as wrongheaded as those goals might be) without forcing religious objectors to violate their conscience. As these groups have been arguing since day one, “there are many ways in which the employees of a petitioner with an insured plan could receive cost-free contraceptive coverage through the same insurance company that would not require further involvement by the petitioner, including the way described in the Court’s order.” Sister Loraine Maguire, Mother Provincial for the Little Sisters of the Poor, echoed this idea in a recent piece for the Wall Street Journal:
[W]e have always maintained that there is no reason to take over a religious group’s health plan when there are countless other ways for the government to achieve its goal. We have never asked the court to prevent the government or insurance companies from offering this coverage to women who want it. We asked simply that we be allowed to continue to serve the elderly poor without violating our faith.
Fr. Frank Pavone, head of Priests for Life, said that the Court’s request for further briefing was “greatly encouraging.” He wrote:
If, for instance, the government or the insurance company contacts our employees independently of us, to offer the coverage by means of a truly separate plan -- rather than hijacking our own -- and if, as we insist, there is no payment, authorization, permission, or any other kind of involvement by us, then our religious freedom would not be burdened in the way it is under the current “accommodation.”
The government’s response to the Court’s order, however, is an exercise in confusion and obfuscation.
First, the government tries to argue that that its bogus “accommodation” is remarkably similar to the hypothetical scenario outlined in the Court’s order. It says its accommodation scheme already allows groups like the Little Sisters of the Poor to “opt out” of providing the religiously objectionable drugs and services. The government says that this scheme is only “minimally intrusive.”
The government still doesn’t get it. The problem with the government’s so-called “accommodation,” as the religious organizations have been arguing all along, is that it does not allow them to exempt themselves (in other words, truly opt out) from participating in the government’s abortifacient Mandate. The government says that its accommodation process is only “minimally intrusive,” but what right does the government have to tell a religious believer what does and does not burden a religious belief or practice? Unlike the scenario outlined by the Court, the accommodation devised by the government requires a religious objector to participate directly in a process by which abortifacients are made freely available to its employees, under pain of enormous financial penalties.
Several pages after refusing to directly address the central issue of the Court’s order, however, the government acknowledges that its accommodation process “could be modified to operate in the manner posited in the Court’s order.”
This is a disastrous admission by the government.
As explained in more detail here, one of the central issues of the Little Sisters’ case is whether the government has used the “least restrictive means” of furthering its interests – as required by the federal Religious Freedom Restoration Act (“RFRA”). As the Supreme Court unanimously held in a religious freedom case last year: “if a less restrictive means is available for the Government to achieve its goals, the Government must use it.”
By admitting that its current “accommodation” can be amended in a way as outlined by the Court, the government is admitting that there are less restrictive ways available to the government than what it’s currently doing.
Reading between the lines of the Court’s March 29th order, it’s fairly clear that the Court is looking for a way to achieve a compromise between the parties that does not require the Little Sisters to compromise their religious beliefs. While the Sisters are more than amenable to such a resolution, the government does not appear to be that keenly interested. This is not surprising. Ever since this litigation commenced, the government has steadfastly turned a blind eye to the sincerely held and longstanding religious beliefs of groups like the Little Sisters of the Poor. Only an administration like the current one could think that an order of Catholic nuns wouldn’t take issue with a process that requires them to be directly involved in the provision of abortion-inducing drugs to their employees.
Now that the additional briefing is complete, we await a final decision from the Court. Whether the Court will be able to arrive at anything other than an even 4-4 split decision remains to be seen. Whether the Court will affirm the rights to religious liberty and freedom of conscience also remains to be seen. Answers to these questions are expected by the end of June.
The ACLJ successfully represented seven business clients in defeating the abortion-pill mandate for business owners. We recently filed an amicus brief in this critically important extension of those cases.
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