The Little Sisters, the Government, and the Supremes

03/31/16

John Stonestreet

Apparently, free contraception means more to the U. S. Government than the First Freedom. Here’s an update on Zubik v Burwell.

John Stonestreet

On Wednesday, March 23^rd, the Supreme Court heard oral arguments in a group of cases known collectively as Zubik v. Burwell. The “Zubik” in the case name is David Zubik, the Bishop of the Catholic Diocese of Pittsburgh.

The case is about religious freedom, and not only for Catholics but for all Americans. The issue is the application of the HHS mandate, which requires that most employer-provided health care plans provide no-cost contraception, sterilization, and abortion-inducing drugs, such as the “morning-after pill.”

“Most” is the operative word: those exempted from the mandate’s requirements include the likes of Exxon, Chevron, Visa, and the city of New York.

After HHS secretary Kathleen Sibelius announced the mandate in the summer of 2010, religious groups strongly criticized not only its requirements but also the overly-narrow criteria by which religious groups would be exempted from its requirements.

Basically, only churches and their employees would be exempt. Any other religious groups, such as schools, non-profit charities, hospitals, or even, as it turns out, a group of nuns like the Little Sisters of the Poor, faced a series of unconscionable choices: Stop serving people who didn’t share their faith; violate their religious beliefs; or, pay potentially ruinous fines.

Actually, they had a fourth option: Sue the federal government under the Religious Freedom Restoration Act, which is what folks like the Diocese of Pittsburgh, the Little Sisters of the Poor, and Wheaton College, among others, did.

As the cases made their way through the federal courts, most of the District and Appeals Courts sided with the Federal government’s position. That position was that in requiring religious groups to contract with an insurer who will provide contraceptive and abortifacient coverage, while allowing them, via a form, to not directly pay for that coverage, was a sufficient “accommodation” to their beliefs.

Since one Circuit of Appeals sided with the religious groups instead, the case went to the Supreme Court for review.

This set the stage for March 23^rd. In his analysis of the oral arguments, Lyle Dennison of SCOTUSblog, the go-to source for Supreme Court news and analysis, wrote that it was clear that justices Kagan, Ginzburg, Sotomayor, and Breyer would vote to uphold the government’s position.

Similarly, justices Alito, who wrote the decision in the Hobby Lobby case, and Thomas, along with Chief Justice Roberts clearly sided with those challenging the mandate.

That leaves Justice Kennedy. As Dennison pointed out, Kennedy seemed sympathetic to the argument that the government had “hijacked” the religious organizations’ health care plans in order to implement the HHS mandate. The federal government could have set up a separate program that provided the drugs in question at no charge, thus keeping the Little Sisters and Wheaton completely out of the loop.

Instead, it insisted on getting them involved by requiring them to use their insurers and plan administrators. This is what those challenging the law, and apparently, Justice Kennedy meant by “hijacking.”

But even if Kennedy is on board, the leaves us with a 4-4 split, which means that the Circuit Courts’ decisions will stand, and groups like the Diocese of Pittsburgh, the Little Sisters, and Wheaton College will have to comply or pay ruinous fines.

As Dennison told readers, the Court could vote to rehear the case after a ninth justice is seated, which only goes to emphasize the importance of this fall’s elections. Or, on a possibly more hopeful note, “it’s not beyond the possible that the Court would strive very hard to put together a majority position on the Zubik case . . .”

What the majority would look like is impossible to know, which only goes to emphasize the importance of prayer. Because as we’ve told you time and again on BreakPoint, there’s a lot at stake.

Editor’s note: On Tuesday, the Supreme Court took the unusual step of ordering the parties in Zubik v. Burwell, the case involving the application of the HHS contraceptive mandate to religious nonprofits, to submit additional briefs by April 12 on a possible compromise. The order strongly suggests that the Court is evenly divided on the cases, and is looking for a way to settle the issue now rather than allowing, as a 4-4 would do, the mandate to be applicable in some parts of the country but not in others.

The court essentially ordered the parties to find a solution that takes into account both the religious groups’ objections and the government’s assertion that it has to work through the groups’ health plans. It remains to be seen if such a solution exists.