Photo: The Becket Fund for Religious Liberty
And one fewer Justice on the high court.
On Thursday of last week, Women Speak for Themselves (WSFT) launched a campaign, loosely aligned with Valentine’s Day weekend and beyond, to ‘show a little love to the Little Sisters‘. It coincided with a new website for WSFT, loaded with resources and links to amicus briefs its founder filed at the Supreme Court, includingthis latest one on behalf of the Little Sisters in their struggle to uphold their religious freedom rights. Two days later, Supreme Court Justice Antonin Scalia, great religious freedom defender, suddenly and unexpectedly died.
Why are the Little Sisters of the Poor even in court in the first place? Especially the court system at different levels, reaching all the way to the Supreme Court, doing whatever they can to save their nearly two centuries long ministry to the poor from the threat of government overreach that threatens their services and institutions? Why would the government even do that?
Let’s review. (It’s stunning that we’re still in this situation more than four years after the federal fiat known as the HHS Mandate was issued by the administration’s Department of Health and Human Services, as a contraception delivery scheme slipped into the Affordable Care Act, known as Obamacare.)
For clarity and accessibility, this HHS Info Central has it all: graphics, charts, court challenges, case names and dates and outcomes or facts about pending hearings. It’s a ‘what’s wrong with this picture?’ snapshot of the HHS Mandate in Obamacare.
The Little Sisters of the Poor represent the most emblematic case. By far.
In November 2015…
the U.S. Supreme Court agreed to take up the case of the Little Sisters of the Poor, a group of Catholic nuns facing tens of millions of dollars in IRS fines because they cannot, according to their faith, include contraceptives in their employee health plan. This is the second time the Sisters have been forced to ask the Supreme Court for protection against the government’s HHS Mandate. The Court’s decision will finally resolve the crucial question of whether governmental agencies can, wholly without legislative oversight, needlessly force religious ministries to violate their faith.
Yes, that’s explicitly the situation.
The Little Sisters, who care for more than 13,000 of the elderly poor around the world, had no choice but to appeal to the Supreme Court due to the government’s refusal to exempt them from the HHS mandate, which is currently in its 9th unacceptable iteration. The mandate forces the Little Sisters to authorize the government to use the Sister’s employee healthcare plan to provide contraceptives and abortion-inducing drugs – a violation of their faith – or pay massive fines, which would threaten their religious mission. The Supreme Court entered a temporary order protecting the nuns in January, 2014, but the government has continued litigating, asking lower courts to remove that protection. (emphasis added)
“As Little Sisters of the Poor, we offer the neediest elderly of every race and religion a home where they are welcomed as Christ. We perform this loving ministry because of our faith and cannot possibly choose between our care for the elderly poor and our faith, and we shouldn’t have to,” said Sr. Loraine Marie Maguire, Mother Provincial of the Little Sisters of the Poor. “All we ask is that our rights not be taken away. The government exempts large corporations, small businesses, and other religious ministries from what they are imposing on us – we just want to keep serving the elderly poor as we have always done for 175 years. We look forward to the Supreme Court hearing our case, and pray for God’s protection of our ministry.”
They don’t want to be in court. They didn’t pick this fight. They’re about the last people in public service the government should be forcing to deliver contraception and morning after pills in their healthcare plans. And yet, here we are.
So with the Supreme Court taking on the case again, legal scholar Helen Alvare saw the opportunity to present a real challenge to the government’s claim or defense that it has a “compelling interest” in a mandate that burdens religious freedom, one of a two-prong test the Religious Freedom Restoration Act requires for government to enforce anything that violates so fundamental a protected liberty.
First, fleshing out the contents of the “compelling state interest” requirement will provide much-needed guidance in future religious freedom cases. Lawyers are accustomed to encountering compelling state interest analyses in due process and equal protection cases involving fundamental constitutional rights and suspect classifications. There are a significant number of cases interpreting the meaning of a “compelling state interest” in the areas of speech or racial discrimination. But there are fewer in the area of religious freedom…
Second, a “compelling state interest” analysis in the context of a mandate case would shed light on the government’s tendency – especially when contraception programs are concerned – to make extravagant claims without empirical foundation, while threatening the religious freedom of institutions providing unparalleled amounts of service to women. Governments at both the federal and state level have fallen into the habit of using contraception to “signal” their commitment to women’s rights. The facts on the ground, however, are much more complex.
Enter Women Speak for Themselves, which started as an open letter in response to high level women in government purporting to represent women’s rights and claims on services that really didn’t represent vast numbers of American women outside the Washington beltway and across the country. Helen Alvare was co-author of that letter with another lawyer, Kim Daniels. The open letter turned into a grassroots movement that has spread across the country, across demographics and age groups and backgrounds of women engaging these issues at their most local levels and on the national level, through media and initiatives that allow them to contribute to and change the conversation by sharing their lived experiences. It’s a remarkable range of stories from women speaking for women and their families and health and rights.
The Little Sisters are among those for whom they speak. These nuns don’t seek nor want the spotlight, but Pope Francis paid them a surprise visit last September while in DC during his US apostolic journey, and House Speaker Paul Ryan featured them as his guests among invited attendees – in a moment of irony – to President Obama’s final State of the Union Address in January.
Interestingly, the American Spectator noticed, and pointed out that Justice Sonia Sotomayor was the one who granted them a temporary injunction against punitive fines for not following the mandate, as they pursued permanent relief. Her vote will be needed again when the case is argued before the Supreme Court during Holy Week, in March 2016. Because if she comes down on the liberal side of reading religious freedom as applied to this case, and the court votes 4-4 in the absence of Justice Scalia, religious liberty will face a ‘calamity‘.
The Little Sisters would be forced to violate their faith by subsidizing the distribution of abortifacients, sterilization, and contraceptives to their employees or face ruinous IRS fines. The government exempts a wide variety of religious ministries from the contraception mandate. But the Obama administration insisted that this organization run by Catholic nuns, which has been providing free health care to elderly patients of every race and religion since 1839, is somehow not eligible for the usual exemption. Incredibly, the Tenth Circuit Court of Appeals ruled in favor of the government.
…Before Justice Scalia’s tragic death, there was a reasonable chance that the Little Sisters and six other organizations with which the Court consolidated their case might prevail.
Now, unless one of the four liberal justices — Breyer, Ginsburg, Kagan, and Sotomayor — casts an uncharacteristically nonpartisan vote, a 4-4 vote is all but inevitable.
For once, instead of Justice Anthony Kennedy holding the pivotal swing vote, it may rest with Sotomayor. Or Chief Justice John Roberts, who can work to sway the court in a couple of directions to avoid a calamity.
In the immediate aftermath of Justice Scalia’s untimely death, the Little Sisters of the Poor (with the help of technically proficient friends) released this new website making this whole story much pithier and easier to grasp than ever. Have a look, it’s all there.
Who they are:
The Little Sisters of the Poor have dedicated their lives to living with and caring for the elderly poor. They have been focused on service, not advocacy or policy, and, in this case, they’ve exhausted every option possible before going to court.
What this case is about:
After promising that the Little Sisters’ religious beliefs would be protected, the government created a new regulation requiring the Little Sisters to change their healthcare plan to offer services that violate Catholic teaching. But 1 in 3 Americans do not have a plan that is subject to the mandate HHS is fighting so hard to force the Little Sisters of the Poor to follow. Exxon, Chevron, and Pepsi — as well as other large corporations — are exempt from the mandate, because they never changed their plans and are grandfathered. And the government is not even requiring our own US military to provide these services through their family insurance.
The government is arguing that since it has offered to reimburse the costs of the services it wants the Little Sisters to provide, they should have no moral objection to offering them. The Little Sisters are saying this is not about money, but conscience, and whether they should be forced to change their healthcare plan to offer services they have a moral objection to when those services could be provided more effectively through the government’s healthcare exchange.
And what the solution may, or can, be.
There is an easy solution that protects the Little Sisters’ religious freedom and the right of the government to offer these services to women who want them. Rather than trying to force religious plans to offer these services, the better solution is for the government to provide these services through the ACA healthcare exchange to any employees who want them but can’t get them through employer plans.
The Little Sisters are not trying to prevent the government from providing these services, but object to the government’s insisting the Little Sisters provide them (especially since the government has already refused to ensure that those free services are provided to one in three Americans). Giving all women access to contraception through the healthcare exchange is a simpler and fairer way for the government to provide these services to more women while protecting the religious freedom of the Little Sisters, who never wanted this fight and just want to get back to caring for the elderly in need.