ObamaCare is at it again, trying to deny The Little Sisters of the Poor Catholic nuns their religious freedom. This is Round II in their battle to be decided again by The Supreme Court of the U.S. (SCOTUS)
For review, The Affordable Care Act (better known as ObamaCare) required all insurance products to cover women’s “preventive care”, a euphemism for contraceptives and abortifacients (drugs that terminate pregnancy). Churches were exempted from this provision of the law but not employers. The Little Sisters of the Poor is a Catholic order that runs nursing homes for the poor. As such, they were not exempted from the law.
The Obama administration offered them an opt-out; a fig-leaf to circumvent the law, but the employer’s insurer would still have to cover the contraceptives and abortifacients. The nuns determined this was unacceptable and a violation of their religious freedom.
In 2016, the Supreme Court heard arguments from the sisters, as well as a host of other petitioners, in a case called Zubik v. Burwell. Before the SCOTUS decision was handed down, Justice Antonin Scalia, a conservative Catholic justice, suddenly died, leaving the court with a split 4 – 4 decision. The Court did not rule on the merits but encouraged the religious parties and the government to find some other real accommodation.
The Wall Street Journal editorial board tells us in 2017 and 2018 the Trump administration expanded the exemption to employers who sincerely object to paying for contraceptives. But in a dreary example of liberal intolerance, Pennsylvania and New Jersey governors sued. The Little Sisters, with a home in Pittsburgh, moved to intervene. A federal judge issued a nationwide injunction, which was upheld by the Third Circuit Court of Appeals. Now, the issue comes again before SCOTUS in a pair of consolidated cases known as The Little Sisters of the Poor v. Pennsylvania.
The legal case is essentially unchanged since the first SCOTUS appearance did not rule on the merits. Pennsylvania and New Jersey argue the Trump administration has exceeded its authority because they believe neither ObamaCare nor the 1993 Religious Freedom Restoration Act (RFRA) authorizes the creation of exemptions to the birth-control mandate. RFRA says that if the government wants to “substantially burden” religious exercise, it must have a “compelling interest” and also pursue it by “the least restrictive means.”
Pennsylvania and New Jersey argue again that the previously offered “opt-out” by the Obama administration is sufficient. The U.S. Solicitor General argues to second-guess sincere beliefs “is not appropriate under RFRA.”
The Little Sisters quote the government as saying that after any opt-out the contraceptive coverage would be “seamless,” provided as “part of the same plan.” This is no accommodation, they say, but “just the latest and most convoluted means of offering the Little Sisters an alternative mechanism to comply with the contraceptive mandate.” That the nuns reject it “is not obstinacy but constancy of belief.”
This issue was decided earlier in a case known as Hobby Lobby v. Burwell as it applied to closely held businesses. In 2014 SCOTUS held 5-4 that the contraception mandate could not be squared with RFRA. The Court said, “The government has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion.” As one alternative, the ruling suggested that the feds could “assume the cost’ themselves. This analysis still holds.
The intolerance of the left for religious freedom is contrary to the principles upon which this country was founded. The United States has a long history of religious liberty evidenced by the exemption of the Amish from social security and the accommodation of pacifists like the Quakers and the Brethren from military service. It seems ridiculous in the extreme to expect Catholic nuns, of all people, to provide contraception and abortifacients for their employees. Religious freedom was bought with a high price by our forefathers and we must not allow their efforts to die in vain.