The Christian right loves to play up the lawsuit filed by the Little Sisters of the Poor, a group of nuns that do good work providing homes for the elderly poor, against the Obama administration over the contraception mandate. They know it builds sympathy to present it as the big bad government pushing around a poor bunch of kindly nuns. But this requires them to completely distort the legal issues and the rulings of the courts so far, as the Becket Fund, which represents them, and the Worldnetdaily are more than happy to do.
As the case moves up to the U.S. Supreme Court, a federal appeals court Friday in Denver temporarily suspended its demand that the nuns of the Denver-based Little Sisters of the Poor violate their faith by distributing contraceptives and abortion-causing drugs under Obamacare.
By a 2-1 vote July 14, the 10th U.S. Circuit Court of Appeals ruled the Obama administration can force the nuns to provide their employees with the drugs, which violate Roman Catholic teaching.
And there we have the first blatant lie of the article. Not only are the nuns not being “forced” to “provide their employees with the drugs” that they object to, they are specifically and explicitly exempted from having to do so in the law. But that isn’t good enough for them. They want an exemption from the exemption based on the ridiculous argument that merely triggering the exemption by stating their objection to it is the same thing as forcing them to distribute birth control themselves. So far, every single court in the country has rejected that argument, not only from the Little Sisters of the Poor but from a bunch of other religious non-profits as well.
Mark Rienzi, senior counsel for the Becket Fund, which is representing the Little Sisters, said it’s remarkable that the U.S. government argues it must have the help of the nuns to distribute contraceptives.
And there’s the second lie, essentially the same as the first one.
Becket earlier defeated the Obama administration in a similar case involving Hobby Lobby.
Rienzi said: “The government has lost every single time they have made these arguments before the Supreme Court – including last year’s landmark Hobby Lobby case. One would think they would get the message and stop pressuring the sisters.”
And there’s the third lie. The ruling in Hobby Lobby v Burwell actually said the exact opposite of this. Remember, the Hobby Lobby case involved a for-profit corporation, whereas Little Sisters of the Poor are a religious non-profit. In the ACA, religious non-profits were given something called the secondary accommodation, which gives them an exemption from the contraception mandate so they don’t have to include birth control in their group insurance policies. And in fact, the Supreme Court ruled that if the government would just allow for-profit corporations (closely held ones, that is) that same accommodation, that would provide adequate protection for their religious liberty:
Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test. There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives.
In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious nonprofit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.
Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful.
The Supreme Court explicitly said that the secondary accommodation, which was already provided to religious non-profits like the Little Sisters of the Poor, was a legal means of ensuring access to birth control for employees of those organizations without violating their religious liberty in any way. And every single lower court that has so far considered the legality of the secondary accommodation under RFRA or the Free Exercise Clause has agreed that the accommodation is adequate to protect religious liberty while still achieving the goal of maximizing access to contraception.
The Becket Fund has filed a writ of certiorari in this case, asking the Supreme Court to hear their appeal. Since every circuit so far has ruled the same way and their rulings are entirely in compliance with the ruling in Hobby Lobby, I think it’s pretty unlikely that they’ll take it, and even more unlikely that they would win the case if it does get heard.