By JAMES K. FITZPATRICK
I don’t know if the Obama administration thought they would be able to put one over on the Little Sisters of the Poor. If so, they were mistaken. The sisters are taking the Obama team to the Supreme Court. The first oral arguments in their case (Zubik v. Burwell) were made on March 23. The 175-year-old religious order that cares for the elderly poor has asked the court for an exemption from the Department of Health and Human Services (HHS) mandate requiring them to provide insurance coverage for contraceptives and abortifacients in their employees’ health-care plans. The sisters contend the mandate denies them of their freedom of religion. The sisters do not accept that the “opt out” offered to them by HHS diminishes that denial of their First Amendment rights.
There are things to be learned from this standoff between the sisters and HHS. The twists and turns that have taken place reveal a great deal about the Obama administration’s vision for how Obamacare will work in the future.
HHS’s initial position was that it would grant “religious employers” an exemption from the mandate to provide contraceptives. But HHS defined religious employers narrowly, limiting the exemption to entities such as churches and synagogues. The exemption was not extended to schools, hospitals, and charities operated by religious organizations, such as the nursing homes run by the Little Sisters of the Poor. If these organizations did not provide coverage for contraception they would face prohibitively high fines. The sisters estimated that their fine would approach $70 million per year.
There was public outcry against the government’s heavy hand, along with threats of litigation. HHS responded by backing off a bit, offering religious employers the so-called “opt out” from the contraception mandate. Here’s how the opt-out would work: HHS required groups like the Little Sisters of the Poor to file a form stating the basis for their religious objection to the mandate, as well as the “name and type” of their insurance plan and the plan’s “third party administrators and health insurance issuers.”
With this information in hand, HHS proposed to notify the religious employer’s insurance plan that it was required to notify employees in the plan that they would be provided contraceptive coverage “at no charge.” All the employees had to do was request — on their own — the coverage from the insurance carrier. HHS contends this solves the moral dilemma for groups such as the sisters, since their only requirement was to fill out this form; that they did not have to have to pay for anyone’s contraceptive coverage. That the insurance carrier would provide it free of charge.
The sisters spotted the con job. Hence their court case. The sisters know that nothing is “free.” They know that the cost of their employees’ health insurance coverage — from the day the sisters “opt out” of the contraception mandate — will be calculated by the insurance company with this “free” contraceptive coverage factored in. The employees receiving “free” contraceptives will still be receiving it as part of the Little Sisters of the Poor’s insurance plan. Which means the sisters will still pay for it.
On March 29, Dr. Grazie Pozo Christie, writing in The Detroit News, provided a comparison that captures the devious nature of the Obama administration’s demand:
“Imagine an elementary school whose administration is sincerely concerned for the physical health of the students it educates. In the cafeteria are vending machines that sell water and pure fruit juice — but not soda. The government writes a regulation demanding the sale of pop in school vending machines. When the school objects, the government offers to put the sodas in the machines for ‘free.’ But the school is not satisfied. Its objection isn’t simply about paying for the soda. The school objects to facilitating access to the drinks. They cannot in good conscience offer the product to the students.”
Sr. Loraine Marie Maguire, mother provincial of the Little Sisters of the Poor, understands perfectly well what is happening. She told reporters, “We don’t understand why the government is doing this when there is an easy solution that doesn’t involve us — it can provide these services on the exchanges.”
Precisely. HHS could easily make clear to all employees who are not provided coverage for contraceptives in their insurer’s health-care plan, that they can go to the exchanges set up under Obamacare and secure such coverage on their own — at whatever cost the federal government determines. Or free of any charge, if that is the government’s decision. HHS’s reluctance to do this indicates its determination to coerce those with religious objections into providing coverage for contraceptives and abortifacients to do so anyway.
Why would the Obama administration take this stance? It seems clear to me: It wants religious organizations such as the Little Sisters of the Poor to cover the costs of providing contraceptives, in order to avoid the taxes or increases in government deficits that would be required if the government is required to provide free contraceptives. The appearance that Obamacare is “affordable” must be maintained.
It is difficult to not suspect another motive: that there are members of the Obama administration who are seeking a victory in the culture wars by depicting groups such as the sisters as proponents of medieval thinking that needs to be driven to the margins of our societal life through public confrontations like this; that HHS wants to make the sisters seem unreasonable.
An overstatement? Consider the dissenting opinion of Justice Ruth Bader Ginsburg in the Hobby Lobby case. Hobby Lobby, you will recall, successfully sued to restrain the government from forcing them to provide specific types of contraceptives in their employees’ health-care plans. Ginsburg dissented, arguing that religious exemptions “were for individuals only, and did not extend to a business or privately held corporation,” and that religious beliefs are not exempt from government mandates when they “significantly impinge upon the interests of third parties.”
It is not hard to picture Ginsburg using this same logic against the Little Sisters of the Poor in the current case before the court; that she will hold that the religious convictions of the sisters cannot be guaranteed under law if they result in a “significant impingement” on the right of their employees to secure birth control. Justices Breyer, Sotomayor, and Kagan will likely rule the same way. Now that Antonin Scalia is no longer on the court, this logic may prevail. We will know when the court’s decision is rendered. All that is needed is for one of the “conservative” justices to switch sides. Anthony Kennedy and John Roberts have been known to do that.
The stakes are high. Whatever happens in the current court case involving the Little Sisters, if Hillary Clinton or some other liberal Democrat is elected president, Ginsburg’s logic will likely become the majority opinion, rather than a dissenting opinion. All that will be needed is one or two additional liberal justices on the court — which we will get from a liberal Democratic president. If that happens we will hear a version of Ginsburg’s words used to make the case that denying insurance coverage for abortions also “significantly impinges upon the interests of third parties.”
One recent more hopeful development: The afternoon of March 29, justices asked both sides of the Zubik v. Burwell case to submit additional legal briefs detailing “how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners.”
We shall see.
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