The Supreme Court’s decision to hear Little Sisters of the Poor v. Burwell means that another group of Christians bedeviled by Beltway bureaucrats must beg permission from nine unelected government officials to practice their faith unmolested. This isn’t about women’s health or reproductive rights. It’s just another battle in the war on religious liberty waged by various manifestations of the state for two millennia. Whether it’s President Obama ordering his HHS secretary to bring intransigent nuns to heel or the Emperor Trajan advising a provincial governor on the proper punishment of unrepentant Christians, it’s all about worshipping the state gods.
During Trajan’s reign, that meant forcing people to betray their faith by making them participate in the imperial cult. This typically involved a public sacrifice to the “divine” Augustus. Refusal to do so resulted in very unpleasant consequences. In our era, it means forcing people to betray their faith by making them subsidize the sacraments of the secular state, like abortion on demand and “free” abortifacients. Refusal to obey means financial destruction by means of ruinous federal fines. It was just such a refusal to pay for the secular sacrament of contraception that brought the heavy hand of the Obama administration down on the Little Sisters of the Poor.
And just who are these seditious sisters who refuse to make obeisance to the almighty state? The Little Sisters of the Poor is an international Roman Catholic Congregation founded in 1839. They operate nursing homes for the poor in 31 countries, including 30 in the United States. Their mission is described on their website thus: “Our MISSION is to offer the neediest elderly of every race and religion a home where they will be welcomed as Christ, cared for as family and accompanied with dignity until God calls them to himself.” As Catholics, they follow Church doctrine and thus don’t include coverage for contraception in their employee health plans.
This act of civil disobedience has been deemed so scary by the Obama administration that it has spent tens of millions in taxpayer dollars trying to force the Little Sisters to submit. Why? As the Becket Fund for Religious Liberty, which is representing them in court, explains: “Although the government exempts church and church-run ministries from the HHS [contraception] mandate, it argues the Little Sisters aren’t religious enough for the same exemption. Instead, it demands the Little Sisters sign over their healthcare plan or pay IRS fines.” The court battles began in 2013 and will end in the summer of 2016 when the Supreme Court finally hands down its ruling.
The Obama administration’s position is that it has graciously condescended to grant an “accommodation” for organizations like the Little Sisters of the Poor and that they won’t be required to provide contraception coverage if they will unbend enough to apply for this special dispensation. The Becket Fund disposes of this argument as follows: “The so-called ‘accommodation’ still forces the Little Sisters to find an insurer who will cover sterilization, contraceptive and abortion-inducing drugs and devices, and will provide related counseling and education to promote those things.” In other words, the accommodation is just a fig leaf.
In fact, the very act of applying for the accommodation would make the Little Sisters complicit in providing the coverage to which they object. In order to avail themselves of this special dispensation, the Little Sisters would have to fill out a document called the EBSA 700 FORM—CERTIFICATION. They would then be obliged to provide this document to their third-party (health insurance) administrator, which is required by law to provide “free” access to abortion-inducing drugs, sterilizations, and various other contraceptives to the organization’s employees. This means that the accommodation itself triggers the objectionable coverage.
This is the nuance that at least five justices must be made to understand for the Little Sisters to prevail. This will not be an easy task for their lawyers. It is very likely that the four liberal justices—Breyer, Ginsburg, Kagan, and Sotomayor—will all but ignore the point. It is true, of course, that Justice Sotomayor granted the Little Sisters a temporary injunction in late 2013 so the Obama administration could not bankrupt them before they got their day in court. But that doesn’t portend a divergence from her robotically liberal voting record. That she joined Justice Ginsberg’s bitter dissent in Burwell v. Hobby Lobby should make that abundantly clear.
And at least one of the remaining five believes the “accommodation” is a legitimate remedy when the religious convictions of a nonprofit employer conflict with the contraception mandate. Despite voting with the majority in the Hobby Lobby case, in which the Court ruled that closely held corporations are exempt from the mandate when the government’s purpose can be achieved by less restrictive means, Justice Kennedy’s concurring opinion included this: “The accommodation works by requiring insurance companies to cover, without cost sharing, contraception coverage… but does not impinge on the plaintiffs’ religious beliefs.”
An interesting twist to this story involves every progressive’s favorite Pope. During his recent visit to the U.S. Pope Francis paid a surprise visit to the Little Sisters, and the Vatican made it abundantly clear that he did so as a show of support for their position in this case. This won’t have any effect on the Court’s ruling, but it certainly highlighted the plight of the Little Sisters. Not that their situation was ever ambiguous. Little Sisters of the Poor v. Burwell isn’t about reproductive rights, the “war in women,” or other such balderdash. It’s about whether our primary allegiance as free people is owed to our own consciences or Government Almighty.