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. 

Freedom of Religion Across the Globe

Today's Wall Street Journal included this plea made on August 5th by Vian Dakhil to her fellow members of the Iraqi Parliament, on behalf of the Yazidi, a religious sect whose members are besieged on Mount Sinjar by the extremist group formerly known as the Islamic state of Iraq and al-Sham:

I beg you, Mr. Speaker, my people are being slaughtered, just like all the Iraqis were slaughtered: Shiites, Sunnis, Christians, Turkmens, and the Shabak people. Today, the Yazidis are being slaughtered.
Brothers, despite all the political disagreements, we want human solidarity. I speak in the name of humanity. Save us! Save us! For the past 48 hours, 30,000 families have been besieged on Mount Sinjar, without food or water. They are dying. Seventy children have died so far of thirst and suffocation. Fifty elderly people have died because of the deteriorating conditions. Our women are being taken captive and sold on the slave-market.
Mr. Speaker, we call upon the Iraqi parliament to intervene immediately to stop this massacre. . . .
We are being slaughtered, annihilated. An entire religion is being wiped off the face of the Earth. Brothers, I am calling out to you in the name of humanity! In the name of humanity, save us! Mr. Speaker, I want to . . .
Vian Dakhil breaks down crying.

We will post later on President Obama's decision to authorize air strikes in Iraq to aid the families on Mount Sinjar, as well as on the group formerly known as ISIS's persecution of Christians.  For now, though, Ms. Dakhil's heartrending plea highlights the importance of our First Amendment.  

Yazidism is an ancient monothiestic religion. Yazidis believe in one god, who created the world and entrusted it to the care of seven holy beings. One of these beings was Tawuse Melek, the "Peacock Angel", who refused to bow to Adam after God created man. According to Yazidi tradition, God then made Tawuse Melek the leader of all angels and his deputy on earth. Followers of other religious traditions, such as Muslims, maintain that Tawuse Melek fell out of favor with God after the Adam incident and eventually became Satan. They therefore view Yazidis as devil-worshippers. 

Now, in A.D. 2014, Sunni Muslims are attempting to kill 30,000 Yazidis on Mount Sinjar because of THESE differences in belief. This is why we must zealously guard the religious protections in the First Amendment.  When the government burdens religious exercise, it implicitly derogates those beliefs and the people that hold them.  Its actions imply that a religion is unworthy of protection.  Taken to extremes, it creates an environment where genocide is possible. A child's belief in a Peacock Angel's fate should not earn her a death sentence. 

Will you see an IRS agent at mass tomorrow?

I came across a startling headline this morning: IRS Strikes Deal With Atheists To Monitor Sermons And Homilies.  The article, which referred to Lois “Fifth Amendment” Lerner, was obviously partisan, so I tried to get a fuller picture from the other side: the Freedom From Religion Foundation.  The FFRF declared victory in the voluntary dismissal of its federal suit against the IRS.  Basically, the FFRF complained that the IRS refused to enforce § 501(c)(3)’s electioneering restrictions against churches and religious institutions.  Under the restrictions, if an organization attempts to influence legislation or intervene in any political campaign on behalf of any candidate for public office, it loses its tax-exempt status.  After the IRS showed that it investigates the political actions of churches and will continue to do so, the FFRF agreed to dismiss the suit.

So is the first headline simply hyperbolic fear-mongering?  Yes and no.  The FFRF’s suit emphasized the “Pulpit Freedom Sunday” practices of certain churches.  The Alliance Defending Freedom described Pulpit Freedom Sunday as a “strategic litigation plan”—pastors would preach about the intersection of the political realm and scriptural Truth on a certain day, and presumably IRS would revoke their churches’ tax-exempt status, thus triggering a First Amendment lawsuit.  So the agreement reached by the FFRF and IRS means that the IRS will likely monitor the sermons on Pulpit Freedom Sunday, which is the goal of Pulpit Freedom Sunday in the first place.  The more troubling implication for me is that the IRS will monitor sermons that aren't part of a strategic litigation plan.  And the possibility of IRS monitoring will have a chilling effect on preaching, which is at the heart of religious exercise.  So if you care about the First Amendment, keep an eye on this story.

My husband brought up an interesting point: the IRS is using our tax dollars to monitor sermons.  Even people who are not as keen on the First Amendment right to free exercise of religion as I am have to admit that paying government employees overtime to listen to pastors on Sundays might not be the best use of funds.

I’ll end this post with a hearty congratulations to Meg Sweeney, who is more passionate about the First Amendment than anyone else I know.  Yesterday, she got engaged to Brett Bean, another illustrious Notre Dame lawyer.  We at So Proudly We Hailed are thrilled for you both! 

Supreme Court Review

Earlier this week, I attended a Supreme Court Review at the National Constitution Center.  I enjoy the National Constitution Center's events; they bring in esteemed academics and litigators for thought-provoking seminars.  When I saw that Erwin Chemerinsky and Frederick Lawrence would discuss the most recent Supreme Court term, I had to go. This event was co-sponsored by the Anti-Defamation League, and no speaker presented a conservative analysis of the cases.

While both Chemerinsky and Lawrence were impressive speakers who had a clear grasp of the holdings in this term's cases, several comments irked me.  On several occasions, both speakers noted that the "five-Catholic-male majority" was unreceptive to the rights of the minority.  As evidence of this hypothesis, they cited the outcomes in Burwell v. Hobby Lobby and McCullen v. Coakley. According to the speakers, both of these cases involved female reproductive rights that were disregarded by the Supreme Court majority.

This line of thinking bothers me for several reasons.  First, I find it intellectually lazy to assume that a justice's religious affiliation and gender dictated his ruling in those two cases.  How has it become acceptable to denigrate a Supreme Court opinion simply because the majority involved Catholic men?  The Pope's recent exhortation, The Joy of the Gospel, decries the evils that can arise in capitalistic societies.  But the Catholic justices aren't criticized as being particularly anti-capitalist. It seems that this anti-Catholic criticism only applies to cases involving reproductive rights, however tangentially.

Second, the tangential relationship to reproductive rights is often blown out of proportion. The Hobby Lobby case involved the Religious Freedom Restoration Act and a for-profit corporation's ability to operate according to the religious beliefs of its shareholders.  It did not involve a ban on contraception.  Women working for Hobby Lobby or Conestoga Wood could still obtain several forms of contraception under their employer-sponsored health plans, just not the abortifacients that their employers found to be morally objectionable. Those women could still exercise their reproductive rights by using one of the other contraceptive methods, paying for their method of choice, or working for a different employer who covered every conceivable contraceptive method.  So female reproductive rights were never really in jeopardy in this case.  What was in jeopardy was Hobby Lobby's ability to run a business in accordance with the religious conscience of the owners.  That is the right protected by RFRA.  And that is the case that the Supreme Court decided.  To say otherwise is disingenuous.

Likewise, in McCullen, female reproductive rights were not the main issue.  That case involved a Massachusetts law that criminalized standing on a public road or sidewalk within thirty-five feet of a reproductive health-care facility.  Here, the rights in jeopardy were not those of the women accessing the health-care facility.  Rather, they were the First Amendment rights of those people that want to counsel patrons of those facilities.  The Supreme Court analyzed this case under free-speech principles, not privacy-rights principles.  And correctly so.  Chemerinsky noted that the five-Catholic-male majority disregarded the "gauntlet of harassment" that women must walk through to get to these clinics.  But the First Amendment means that we cannot just silence people who bear messages that we do not necessarily want to hear.  I don't get to enjoin the ACLU and Planned Parenthood volunteers that (politely but firmly) stop me on the streets of Philadelphia.

It's time that liberal academics stopped criticizing rulings due to the gender and religion of the deciders.

UPDATE: For excellent commentary on Justice Ginsburg's comment that male justices "have a blind spot" when it comes to women, see Brian Murray's post on his blog, Modest Commentary.