Wednesday morning, President Obama’s lawyers will again attempt to convince the Supreme Court that requiring nonprofit religious organizations to acquire government permission to practice their faith unmolested doesn’t place a burden on the free exercise of religion. It may seem self-evident that forcing religious schools, hospitals, and nursing homes to seek special bureaucratic accommodations to freely observe their beliefs obviously creates such a burden. But the apparatchiks who enforce Obamacare’s contraception mandate disagree, and they have spent five years and untold millions in taxpayer dollars in an effort to bend organizations like Little Sisters of the Poor to their will.
Thus, lawyers for seven such organizations whose petitions have been consolidated by the Court with a case called Zubik v. Burwell will appear before the justices to explain how the contraception mandate violates the Religious Freedom Restoration Act (RFRA), which requires government actions to follow certain rules designed to protect the free exercise of religion. Under RFRA, an action must involve a “compelling governmental interest” and use the “least restrictive means” of pursuing that interest if it “substantially burdens the free exercise of religion.” The petitioners will argue that the mandate does impose such a burden yet fails the “least restrictive means” test.
The mandate’s failure to pass this test is what created the lower court disagreement that SCOTUS must resolve. The contraception mandate precipitated dozens of lawsuits against the government, and most of the federal appeals courts sided with the Obama administration. But in Dordt v. Burwell, the Eighth Circuit Court of Appeals ruled for the plaintiffs: “We conclude that, even assuming that the government’s interests in safeguarding public health and ensuring equal access to health care for women are compelling, the contraceptive mandate and accommodation process likely are not the least restrictive means of furthering those interests.” In other words, the mandate violates RFRA.
The Obama administration argues that it doesn’t violate the petitioners’ rights under RFRA because the Health and Human Services Department (HHS) has granted “a regulatory accommodation that would allow them to opt out of the contraceptive-coverage requirement.” However, as Sister Constance Veit, communications director for Little Sisters of the Poor, wrote last Friday in the New York Times, “What Health and Human Services is calling an ‘opt-out’ is really… a permission slip where we authorize the use of our religious health plan to offer services that violate our beliefs and waive our protections under federal civil rights laws. That’s why they need our signature.”
And that is by no means all the mandate mischief HHS has been up to. Evidence has recently emerged showing that it was deliberately designed to be discriminatory. The Catholic Education Daily reports, “Despite the Obama administration’s assurances that it is trying to accommodate religious freedom interests, recently discovered government emails show that institutions of Catholic education were specifically targeted and denied religious freedom exemptions from the HHS Mandate.” This skullduggery was uncovered by a congressional inquiry and has since been described in an amicus brief filed with the Court by Carrie Severino, chief counsel of the Judicial Crisis Network.
Severino explains how the tax code was misused to decree which religious organizations would qualify for exemptions: “The HHS mandate relies on categories set forth in Internal Revenue Code § 6033 to distinguish between religious organizations.… HHS’s decision to gerrymander the exemption in this way was intentional; it knew that in significant cases, virtually identical religious groups would be treated differently based on nothing more than their classification under tax law.” Thus, the bureaucrats exempt some church-run ministries from the contraception mandate, yet claim that an organization of nuns like Little Sisters of the Poor somehow doesn’t qualify for an exemption.
It hardly needs saying that the plight of the petitioners in Zubik v. Burwell is further complicated by the recent death of Justice Scalia. Before his tragic death, there was an outside chance that the petitioners could have prevailed. There is very little chance that any of the four liberal justices will vote against the Obama administration. So, the absolute best the petitioners can hope for now is a 4-4 vote, which will leave the lower court rulings in place. There is, of course, no predicting what Chief Justice Roberts will do. His weird record suggests that his vote may depend on whether a black cat crosses his path on his way to work. The petitioners probably can’t count on Justice Kennedy either.
When the Court ruled on Burwell v. Hobby Lobby, Kennedy made it clear that he 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, Kennedy’s concurring opinion included this ominous passage: “The accommodation works by requiring insurance companies to cover, without cost sharing, contraception coverage… but does not impinge on the plaintiffs’ religious beliefs.”
This is nonsense, of course. The religious convictions of all seven petitioners in Zubik v. Burwell preclude them from facilitating the acquisition or use of at least one item on Obamacare’s arbitrary list of “essential” contraceptive drugs and devices. All they want is for the government to stop ordering them to pay for these items. As Sister Veit explains in the New York Times piece mentioned above, “The obvious alternative to forcing us to offer these services is for the government to allow our employees to access them through its own health care exchanges.” But the Obama administration refuses to consider this far less “restrictive” means of accomplishing its ostensible goal.
Which suggests that this isn’t about health care, reproductive rights, discrimination against women, or any of the other pretexts suggested by the Obama administration. It’s all about power. Religious liberty and freedom of conscience are seen by our Beltway masters as a threat to their power. And they are right.