The death of Supreme Court Justice Antonin Scalia was more than a tragedy for his family and American jurisprudence. It was a calamity for religious liberty. The Court will soon hear Little Sisters of the Poor v. Burwell, which challenges Obamacare’s contraception mandate. Because Scalia’s death reduces the number of justices to eight, the spectre of a tie vote now looms over the case. If the remaining justices vote as they did in the Hobby Lobby case, the result will be a “per curiam” decision whereby a prior miscarriage of justice by the Tenth Circuit Court of Appeals will stand.
For those unfamiliar with the term “per curiam,” it is defined by the Legal Information Institute at the Cornell University Law School thus: “A decision delivered via an opinion issued in the name of the Court rather than specific judges… Usually, though not always, they deal with issues the Court views as relatively non-controversial.” That such a ruling would be issued in a case involving the Obama administration’s brazen violation of the religious rights of an organization of nuns who provide free nursing home care to destitute seniors will be seen as outrageous by many.
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.
The Supreme Court first became involved in the case in December of 2013, when Justice Sotomayor issued a temporary injunction preventing the Obama administration from fining the Little Sisters into oblivion while they fought the government in court. Then, when the Tenth Circuit issued its bizarre opinion, their legal representatives petitioned SCOTUS to hear the case and the Court agreed to do so. 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. Obamacare’s apologists take the position that this is much ado about nothing. They would have us believe that the Obama administration has generously granted an “accommodation” for organizations like the Little Sisters of the Poor and that they won’t be required to provide abortifacient and contraception coverage if they simply apply for this special dispensation. This claim is presumptuous and disingenuous.
In reality, the accommodation is little more than 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 apply for this special dispensation, they would have to submit a document called the EBSA 700. Sister Constance Veit, the organization’s communications director, explains why this is just unacceptable: “Contrary to how it is often presented, Form 700 is neither a simple declaration of conscientious objection, nor an ‘opt out’ regarding the HHS Contraceptive Mandate.”
Because the Little Sisters would be forced to provide this document to their third-party health insurance administrator, which would then be required by law to provide “free” access to abortion-inducing drugs and other contraceptives to the organization’s employees, “Signing it would allow HHS to commandeer the infrastructure of our health care plan in order to use it to distribute abortifacients and contraceptives to our employees. In other words, signing Form 700 would involve us in formal cooperation with wrongdoing, which is never permissible under Catholic doctrine.”
The irony of all this is that the First Amendment and the Religious Freedom Restoration Act (RFRA) were both conceived and enacted to protect individuals and organizations from having to justify their religious convictions or how they exercise them to the government. And yet Hobby Lobby, the Little Sisters of the Poor, and many other organizations have been harassed by Obama administration apparatchiks to the point that they have been forced to seek the protection of the Supreme Court. Now, that Justice Scalia is gone, they may well be effectively robbed of their day in court.
President Obama, in his remarks on Scalia’s death said the following: “He will no doubt be remembered as one of the most consequential judges and thinkers to serve on the Supreme Court. Justice Scalia dedicated his life to the cornerstone of our democracy: The rule of law. Tonight, we honor his extraordinary service to our nation and remember one of the towering legal figures of our time.” Justice Scalia’s former colleagues should honor his service by refusing to use a per curiam decision to dodge a case about which they know he had very serious intellectual, legal, and moral concerns.
Scalia understood that Little Sisters of the Poor v. Burwell has always been about religious liberty, and would consider it a dereliction of duty to let the partisan judges of the Tenth Circuit Court of Appeals have the final word on the case. The surviving justices owe Scalia and the nation an honest ruling.