April 13, 2016
There is growing reason to hope that the long battle to defend religious freedom against the HHS Mandate may soon be favorably resolved.
You will recall that the “HHS mandate” comes from a provision in the “Affordable Care Act” (the “ACA”, which is typically being called “Obamacare”) that requires all employers who offer health insurance to include coverage for “preventive services”. The term “preventive services” has been defined by the Department of Health and Human Services (“HHS”) to include contraceptive drugs and devices (including “emergency contraception”, which causes early abortions) and sterilization operations. Churches and other purely religious organizations are exempted from this mandate, but many religious and other organizations are not. As a result, they have been in court trying to vindicate their right to conscientious objection -- they don't want to cooperate in the provision of services or products that are against their religious beliefs.
There was a significant victory in 2014 when the right of two family-owned corporations won their case before the U.S. Supreme Court (the
Hobby Lobby case). But now the Court is considering a major case involving numerous religious organizations who are not exempt, and who are facing massive fines if they don't knuckle under. The most prominent of these organizations is the Little Sisters of the Poor, but there are other Catholic and Protestant organizations as well. The principal argument of these organizations is that the government is requiring them to file forms that essentially allows the government to "hijack" their health plan to provide services that they consider morally evil.
The case was argued before the Supreme Court in March. Usually, we would expect a decision in late June, but things in the Court have become complicated by the death of Justice Scalia -- cases that might otherwise have been decided by a 5 to 4 vote would likely now result in a 4 to 4 split Court. Perhaps becuase of this dilemma, the Court did something very unusual. They asked the parties to submit additional briefs, in response to a suggestion from the Court that there may be a way to resolve the case, by permitting employees to receive the offensive services without any action by the religious groups. This was encouraging -- it suggested that the Court was sympathetic to the religious liberty arguments, and was seeking a way to protect them.
Now the religious organizations and the government have filed their briefs. The Little Sisters et al. readily agreed to the Court's suggestion, saying that they could comply with an arrangement where they are not required to take any action that would trigger the provision of the services, and if the services are actually provided by a separate insurance plan (even if it is run by their regular insurance carrier). This is all that the religious organizations have ever wanted -- to be left alone to do their work, without getting dragged into anyone's sex lives. In effect, they were saying to the Court, "This is the solution that we would have suggested to the government years ago, if they had only asked".
The government, for its part, reacted by quibbling, complaining, and digging their heels in. They complained about having to file a new brief. They insisted that no further concessions were necessary to protect the religious groups' consciences -- as if they knew better what is in violation of Catholic or Protestant moral teachings. They groused that the Court's suggestion would require changes to other sections of the law and regulations, as if that were something unheard-of, rather than the commonplace result of any litigation of this type. They continued to fantasize that any further accommodation would lead to a parade of horribles -- endless further litigation, thousands of women without health care, etc. And in the end, as if they were swallowing nasty-tasting medicine, they kind-of, sort-of, very reluctantly maybe agreed that the Court's suggestion would be barely acceptable.
This ungracious reply hurts the government's credibility, and is cause to be hopeful for a positive result. The Court now has reason to wonder why the case is even before them, and has a clear way to resolve it. All they need do is issue a simple opinion, stating that the government has failed to establish a compelling reason to force the Little Sisters et al. to cooperate with the HHS Mandate, and ordering the settlement that the Court suggested, to which both the government (however grudgingly) and the Sisters have now agreed.
That would end this long nightmare, and vindicate the right to conscience of religious organizations. But it also raises a troubling question -- if such a common-sense solution was available all this time, why did the government insist on forcing the cooperation of the religious groups? I know of no other answer, other than the Administration's well-established hostility to traditional religious values, and their complete dedication to the spread of the ideology of sexual liberation, against any opposition.