Little Sisters vs. Big Government

Last week, the government announced that it would continue to fight over contraceptive coverage with the Little Sisters of the Poor.  The Little Sisters filed suit to obtain injunctive relief from a federal mandate requiring employers to provide contraceptive coverage for their female employees.  I say “federal mandate” because this requirement was not part of the text of the Affordable Care Act.  Rather, the ACA required  any “group health plan” to provide coverage for certain “preventive care” without “any cost sharing.” 42 U.S.C. § 300gg-13(a).  A federal agency, the Health Resources and Services Administration, defined “preventative care” to include FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling, including abortifacient “emergency contraception” such as Plan B (the “morning-after” pill) and ella (the “week-after” pill).

The Little Sisters maintain that this mandate would require them to violate their religious beliefs, since they cannot appear to condone practices that they view as life-ending. So they asked the court in Denver to declare that applying the contraceptive mandate violates their rights under the Religious Freedom Restoration Act and the First Amendment.  The government has offered them a couple of avenues of accommodation, rather than providing the contraceptive coverage themselves: the Little Sisters can notify their third-party insurance administrator, they can fill out a federal form notifying HHS that they are objecting on religious grounds, or they may write a letter to HHS. In January, the Supreme Court ruledthat during litigation on the merits, the Little Sisters need not use the government form or notify their third-party administrators directly: they could simply notify HHS.  But HHS has since promulgated interim rules that dictate exactly what must be in the Little Sisters’ letter to HHS: their name, the basis of their objection, what they object to, the insurance plan name and type, and the name and contact information for any of the third-party plan administrators.

The Little Sisters say that this “accommodation” changes nothing in their appeal—they are still forced to comply with the mandate in violation of their religious beliefs.  According to them, the government could have given them a religious exemption (as it does for churches, but not Catholic hospitals or schools).  The government could have exempted church insurance plans, like the one carried by the Little Sisters.  It could have simply provided contraceptives to women itself, through Title X, tax incentives, or allowing the Little Sisters’ female employees to purchase subsidized coverage on the government’s own healthcare exchanges. Rather than do any of this, though, the government requires a letter identifying the third-party administrators, which the government will use to “offer those entities incentives to take action contrary to the terms of the plan and religious beliefs of the Little Sisters.” The government responds that the Little Sisters don’t need to notify their plan administrators of their objections; after they send the letter to the HHS, the government will do all of the notification for them. The government is also fighting against any injunctions during litigation, since it is imperative that female employees of the Little Sisters receive contraceptive coverage without delay.

First, fighting against the injunction seems disingenuous to me.  While so many parts of the Affordable Care Act have been delayed in their implementation, why is contraceptive coverage for the employees of the Little Sisters of the Poor such an urgent need? 

Second, I was familiar with this fight earlier, but I did not know that the contraceptive mandate was not in the statutory text.  This speaks to the vast administrative power that was delegated by the Affordable Care Act.  We should be especially wary of this, since the people promulgating these regulations were not elected.

Third, I tend to err on the side of religious freedom.  So what if it’s a one-page form?  Or a letter that names plan administrators?  If the government wants to force a religious group to violate their beliefs, it better be for a compelling interest and the law better be narrowly tailored.  As the Little Sisters point out, there are several different ways of serving the interest of providing contraceptive coverage to their employees that do not require them to provide it themselves.