Why the Little Sisters of the Poor should win in the Supreme Court

Printed from: https://newbostonpost.com/2015/11/20/why-the-little-sisters-should-win/

The U.S. Supreme Court recently agreed to hear a challenge by an order of Catholic nuns, the Little Sisters of the Poor, to a federal regulation implementing the Affordable Care Act’s (a.k.a Obamacare’s) contraception mandate.

Is the Little Sisters’ case likely to succeed? I’m not sure, but the Little Sisters do seem to have the better of the argument. (Would that having the better argument were all that matters at the Supreme Court).

Under the Obamacare regulation, the Little Sisters must submit a self-certification of religious opposition to the mandate to the Department of Human and Human Services (HHS) and also execute certain health plan documents in order to escape paying for birth control (including for abortifacients) for their employees.  If they comply, HHS will instruct the Little Sisters’ insurance carrier to itself pay for the birth control. If they do not comply, they will be subject to heavy government fines.

The Little Sisters object to this process on the grounds that completing the forms still facilitates the provision of abortifacients and makes them complicit (under the Catholic doctrine of cooperation in sin) in what the Catholic church teaches is the destruction of human life.

From a legal perspective, those religious views matter because under a separate federal statute, the Religious Freedom Restoration Act, HHS must provide reasonable accommodations to sincerely-held religious beliefs.

There is no doubt that these nuns sincerely believe that completing the forms makes them complicit in grave sin. The case thus boils down to whether there is some reasonable way to accommodate their religious objection.

And the Supreme Court should answer that question yes.

As the majority opinion in the predecessor Hobby Lobby case observed in 2014, it is scarcely necessary for HHS to force any private entities’ insurance plans to be involved in something so controversial as providing abortifacient birth control. If HHS wants easier access to birth control then it can reimburse consumers itself. (Disclaimer: I made the same argument to the Supreme Court on behalf of the Knights of Columbus, in a “friend of the court” brief in Hobby Lobby).

Certainly the money is there. The federal government is inextricably entangled in the business of providing health care to millions of Americans. For FY2016, the HHS budget is nearly $1.1 trillion dollars. (I did a double take when I saw that; the Pentagon budget is just slightly more than half as much). Adding birth control to that tally isn’t going to break the HHS bank. There’s even an Obamacare website that could be used to process reimbursement requests.

There are more arguments too: HHS exempts churches from the paperwork requirement.  So, why can’t nuns and other religious groups have the same exemption?  And while HHS has argued that universal contraception coverage is its interest, it nonetheless has “grandfathered” millions of employees of even non-religious employers. The incoherence of the HHS policy will be fertile grounds for the Little Sisters’ lawyers to exploit.

On the other side of the ledger, it’s hard to ignore that, in Hobby Lobby, the majority pointed to a certification process as a reasonable accommodation.  But RFRA’s accommodation requirement is addressed to individual religious persons, and the majority was at pains to note that it was only deciding the claims of the specific Hobby Lobby plaintiffs (who are evangelical Christians).  These Catholic nuns may need a different accommodation than those plaintiffs.

Then there is Justice Kennedy. Although he joined the majority in Hobby Lobby, he also wrote a separate opinion emphasizing the certification process as a reasonable accommodation. Kennedy has a reputation for being liberal on social issues: he provided a necessary fifth vote to save abortion rights in Casey v. Planned Parenthood and was the fifth vote in last year’s same-sex marriage decision, Obergefell.

We shall see. I do not feel comfortable enough predicting Justice Kennedy’s vote in this case to issue a firm prediction one way or the other.  Maybe it will come down to whether the Justice, a Catholic, had his knuckles rapped by nuns as a boy…

Contributing columnist Kevin P. Martin is a constitutional and regulatory law expert practicing in Boston. The views expressed in this column are his own and not those of his law firm.


Why the Little Sisters of the Poor will lose

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