Is the High Court Starting to Take the Little Sisters Seriously?

Travis Weber is Director of the Center for Religious Liberty and Cathy Ruse is Senior Fellow for Legal Studies at Family Research Council. This article appeared in The Stream on April 29, 2016.

Last week, religious challengers and the government both filed another round of briefs with the Supreme Court on a question it asked the parties in Zubik v. Burwell. This is the legal challenge by the Little Sisters of the Poor and dozens of other religious organizations objecting to being forced to provide certain drugs and services, mandated as part of Obamacare health insurance coverage, against their sincere religious beliefs. (Family Research Council joined an amicus brief in the case.)

In part, the Court had asked the parties to address:

whether and 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 beyond their own decision to provide health insurance without contraceptive coverage to their employees…. For example, the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and … inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds…. [The] insurance company would separately notify petitioners employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners health plan.”

One positive aspect of the order is that it shows — as oral argument seemed to indicate — that at least four justices recognize the current protocol may well be a substantial burden on the organizations’ religious beliefs. If at least four justices did not recognize the existence of a substantial burden, a majority of the Court would simply reject the Little Sisters’ RFRA claim without asking for this extra briefing.

The Court’s question to the parties prompts another question: Is the Court looking for that narrow path that would let the Little Sisters off the hook and still accomplish the administration’s goal?

If the Court agrees that the government has a compelling interest in providing contraception access, doesn’t it make more sense simply to rule against the government on the question of least restrictive means, in light of the alternative means already put forward by the Little Sisters in briefs and at oral argument?

One would think so. But the Obama administration objects to this resolution. At oral argument, the Solicitor General made it clear that the administration’s goal is more nuanced than free-contraception-for-all. It is free drug coverage for every employee received “seamlessly” from her employer’s insurance provider (as long as she is not among the millions of employees who work for one of the manifold exempt employers).

Hence, the Court’s question — which one could view as an attempt to “accommodate” the government. Even then, the government fumbled the ball, and the religious objectors now look stronger than ever.

After oral argument, the Court appeared split on this case. Upon reading the supplemental briefs, however, it is difficult to see how any reasonable judge could side with the government. While the objectors offered several proposals — including obtaining insurance without the objectionable drugs, and leaving the government and insurer to work out the provision of drugs to employees entirely between themselves — the government did not even squarely answer the Court’s question, but rather fell back on defending its “accommodation.” Its reply brief only made the government look worse, for instead of addressing legitimate concerns aimed its way, the government instead turns and criticizes the religious objectors for trying to offer reasonable solutions themselves! “RFRA does not give petitioners the right to insist upon those new conditions,” the government claims. But if the government had been honoring the RFRA claim from the beginning, the Court wouldn’t even be asking the parties to address new issues.

Moving the notice of objection to the beginning of the contractual arrangement between employer and health insurance provider would not have appeared to solve the complicity problem in this case. Employees of the Little Sisters would still receive free birth control and abortion drugs through the insurance provider of the Little Sisters and by virtue of their employment by the Little Sisters, with the involvement of the Little Sisters.

But the objectors provide a reasonable way around this conundrum in their brief by offering solutions which do not require them to take affirmative steps which will facilitate the provision of objectionable drugs and services, yet will still allow the government to provide those drugs and services to their employees. These alternatives are “truly independent of petitioners and their plans — i.e., provided through a separate policy, with a separate enrollment process, a separate insurance card, and a separate payment source, and offered to individuals through a separate communication.” Yet the objectors still make clear that they prefer their original proposal that the government use other means of provision like Title X clinics, or requiring employees to obtain separate plans on the Obamacare Exchanges — as this keeps the objectors even further away from a process they view as morally wrong. Meanwhile, the government insists on forcing them to remain involved in a process that violates their consciences.

After this round of briefing, the religious objectors appear even more sensible while the government looks obstinate and unreasonable. The objectors are now in an even stronger position than before oral argument.

In America, the Little Sisters of the Poor should not have to face crippling fines of $70 million per year (roughly one-third of their operating budget) simply to follow their religious beliefs. As their counsel said at the closing of oral argument, the Little Sisters “would love to be a conscientious objector,” but “the government insists they be a conscientious collaborator.”