How Nuns Could Kill the Pill Mandate
If you thought the debate about Obamacare's birth control mandate was settled with the Hobby Lobby case, think again.
This fall, nonprofit employers in seven different lawsuits are asking the Supreme Court to hear their cases. One of those cases is Little Sisters of the Poor v. Burwell. In this case, a group of Catholic nuns is simply asking not to be party to providing birth control. It should go without saying; contraception mandates and nuns should not mix.
These lawsuits are the result of a series of events:
The Department of Health and Human Services mandated in 2012, pursuant to the Affordable Care Act, that all health insurance plans include first-dollar coverage for all FDA-approved forms of birth control. If employers do not comply, they face a fine of up to $100 per worker per day (or $36,500 per worker per year).
The mandate includes a religious exemption, but only for churches, houses of worship, and "integrated auxiliaries." The government recognized that these organizations might have legitimate First Amendment objections to providing coverage for all forms (or in some cases any forms) of birth control to their employees. But this exemption does not apply to other religious nonprofits that choose to organize differently -- even though those entities may be exercising the same religious freedoms and providing the same nonprofit services as exempted entities.
In addition to the exemption for churches, the mandate includes an "accommodation" for other employers who have objections to the mandate. These employers can fill out some paperwork, informing a third-party (the plan administrator) about their objection. Then the third-party will approach employees to offer payments for the cost of the coverage to which their employer objects.
This "accommodation," while creative, doesn't solve the moral problem before the Little Sisters or similarly situated groups. They don't want to be a party -- in any way -- to providing drugs and devices that they find morally objectionable.
Instead, the exemption and accommodation to the birth control mandate illustrate how little the Obama Administration understands about religion. They know that a church is religious, but don't seem to get that a group of nuns is religious. The Little Sisters' web site states their mission as the following: "to offer the neediest elderly of every race and religion a home where they will be welcomed as Christ, cared for as family and accompanied with dignity until God calls them to himself."
Is this not religious enough to warrant a religious exemption?
It shouldn't matter the legal form of the enterprise -- for-profit or nonprofit, church or not a church -- no one should be forced to violate his conscience in this way. And it shouldn't be the purview of the government to decide who is religious enough for an exemption and who is not.
Recently, (nonreligious) March for Life received a stay in a similar lawsuit. March for Life is a pro-life group that organizes a march on Washington every year on the anniversary of Roe v. Wade. A federal district court in Washington, D.C., ordered the government not to enforce the mandate on the group. This district court recognized, sensibly, that a pro-life organization should not be forced to provide insurance coverage for practices that it sees as tantamount to abortion.
But the Little Sisters have not been successful in their litigation. A federal appeals court in Denver recently ruled in favor of the government. The Little Sisters then appealed to the Supreme Court, where the Independent Women's Forum filed an amicus curiae brief in their support.
When government attempts to enforce a one-size-fits-all mandate on an extremely personal facet of life, the logical end is a sad but laughable legal conflict: where nuns (who have taken a vow of chastity) have to ask the government not to force them to be party to providing birth control that would violate their conscience.
The Supreme Court should take up their case and apply the same logic as in Hobby Lobby: No one should be forced to pay for health insurance coverage for treatments with which they have a deep moral objection.
Even better, our leaders should reevaluate whether it is worthwhile to have a mandate that needs exemption after exemption and accommodation after accommodation. Rather, Americans should be free to make their own decisions about contraception and other aspects of health care.