WASHINGTON, March 24, 2016 — This week the Supreme Court began to tackle what might be the Obama administration trifecta of legal hot-button issues. It heard arguments in the Little Sisters of the Poor Home for the Aged v. Burwell, a case pitting religious conscience and freedom against the Department of Health and Human Services’ newly-created right to free abortifacients and contraceptives.
The contraception mandate was not part of the Affordable Care Act, but a rule created by HHS to clarify the vague directives of the statute. The Little Sisters are not challenging Obamacare, only the HHS directive.
HHS has already exempted millions of American workers from the contraception mandate, grandfathering existing plans that did not include it. It exempted religious institutions, but narrowly limited the exemption to exclude even religious schools, hospitals and charities that pursued a faith-based mission.
After a public outcry, HHS created an “accommodation” to allow these institutions to file a form explaining a religious objection and detailing extensive information about their insurance plans. HHS would then inform the insurer to provide contraceptive coverage without cost to the employing institution.
The Obama administration argues that the burden on religious liberty of this accommodation is negligible. The Sisters counter that they are still required to participate in the process of providing contraception and abortifacients, even if they are not required to pay for them.
Religious freedom, part of the bedrock of the First Amendment, is on a collision course with the Obama administration. The HHS regulation would effectively strip religious institutions like the Little Sisters of the right not to participate in the provision of birth control.
An adverse decision by the court against the nuns would have wide-reaching impact and could easily affect other religious non-profits, parochial schools, religious-based hospitals and private faith-based universities. Judi Lake, executive director of the American Christian Civil Rights Movement (ACCRM) agrees. She says, “The Little Sisters of the Poor Catholic charity is taking a stand that we totally support. The loss of Christian religious freedom is a dangerous problem not just for them but for all Christians across America.”
With the death of conservative Justice Antonin Scalia, religious freedom could be hijacked and the nuns could face a 4-4 split decision. This would leave the current Obama provision intact. It is also possible that Chief Justice John Roberts could hold over a decision on the case until another justice is confirmed by the Senate.
Fox News reports that the justices had sharp ideological differences over the administrative as well as the moral and legal implications of the HHS rule.
During oral arguments, liberal Justice Ruth Bader Ginsburg objected to the charity’s claim of violated religious freedom if the law is upheld. She stressed that if the court creates an exception for the nuns, it could open the “floodgates” that would make Obamacare unworkable.
Ginsberg, never a friend of religious liberty protections, was countered by Chief Justice Roberts, who seemed to stand with the Little Sisters. He stressed that the nuns have used “the phrase ‘hijacking,’ and it seems to me that that’s an accurate description of what the government wants to do.” He added, “They want to use the mechanism that the Little Sisters and the other petitioners have set up to provide services because they want the coverage to be seamless.”
The rule was blocked temporarily by the Supreme Court in January 2014, when the court issued a temporary order preventing the administration from enforcing the mandate. The administration then crafted its compromise. Yet the central issue remains, and the nuns cannot and will not agree to it: This is really no compromise. The nuns won’t be party to providing contraception.
Their religious freedom to oppose abortion and not be party to it is at risk. If the court rules against them, they may face millions of dollars in fines imposed by the Obama administration.
The nuns are guided by the much higher calling to their faith that is found in Isaiah 6:8: “Then I heard the voice of the Lord saying, “Whom shall I send? And who will go for us?” And I said, “Here am I. Send me!”
The nuns have been strengthened by their calling. It is now up to the Supreme Court to decide whether to preserve religious liberty or to sacrifice it to bureaucratic rule-making.