Freedom of Religion

The Little Sisters of the Poor Case Isn't About Contraception. It's About When the Government Can Force You to Violate Your Conscience.

The Supreme Court heard oral arguments in the case today.

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Protesters outside the Supreme Court
Stephanie Slade

This morning the eight justices of Supreme Court heard oral arguments in Zubik v. Burwell. The case will determine whether the Little Sisters of the Poor and six other petitioners (including Pittsburgh Bishop David Zubik) can object to an "accommodation" from the Department of Health and Human Services (HHS) that they believe implicates them in sinful behavior.

The Little Sisters, as an order of Catholic nuns who run homes to care for the indigent elderly, have become the sympathetic face of the dispute. They strongly oppose an HHS rule that says they must either provide free contraception as part of their employees' health insurance plan or fill out a form (or write a letter) notifying the government to instead require their insurer to provide the coverage "independently."

The real issue is more foundational, however: When an American says a law or regulation infringes on his conscience, under what circumstances should he be exempted from it, and under what circumstances should he be forced to comply anyway?

It's a tricky question to which there isn't a fully established answer (though I've ruminated on the topic before). As Justice Stephen Breyer put it today, "I'm [still] trying to find the distinction between those things we do require people to do despite their religious objections and those we don't."

Under the federal Religious Freedom Restoration Act, disputes like this must be adjudicated using a two-part test—but I've found it easier to think of it as actually involving three distinct questions:

  1. Does the law "substantially burden" a person's exercise of religion?
  2. Does the law further a "compelling government interest"?
  3. Does the law use the "least restrictive means" to further the compelling interest?

Going in to today's arguments, I figured the battle would mostly be fought on the ground of that third question. Sure, the government might argue that the HHS accommodation doesn't impose a substantial burden on the religious exercise of these employers. And sure, the petitioners might argue that making birth control available to women at no cost shouldn't be seen as a compelling government interest. But even if the Court went against the government on the first count and against the petitioners on the second, it would still need to decide whether the government could have found less restrictive ways of accomplishing the compelling interest.

That, however, assumed a simple version of the compelling interest claim: that it's the government's job to ensure that all women have access to free contraception.

It turns out the government (as represented by Solicitor General Donald Verrilli) is claiming something else: that its compelling interest is not just in making sure women have access to contraception; that its compelling interest is not just in making sure the contraception is free; but that its compelling interest is in making sure the contraception is free and that its provision is "seamless"—in other words, that women don't have to do any additional work in order to get it.

The only way for the government to ensure that happens, Verrilli argued, is for the government to require the employee's existing insurer be the one that provides the contraception coverage. Thus the need for the Little Sisters (and the other petitioners) to fill out the form or write the letter—otherwise how would the government know which insurer to force into the provision?

It might seem like a small distinction: whether the alleged compelling interest is the narrower "access to free contraception" or the broader "seamless access to free contraception." But in fact, it's a highly meaningful one, because there are clearly a number of less burdensome ways to accomplish the former end. For instance, the government could pay insurers to offer supplementary contraception plans for those women whose employer-provided policies don't include it. Or, hell, the government could just provide free contraception to people itself.

But the government argues there aren't any less burdensome ways to accomplish the latter end. As Verilli put it, "Every single one of [the alternatives] defeats the very purpose for which Congress imposed the preventive service requirement." If a woman has to go out and find a separate plan, and perhaps a separate doctor, in order to access her free contraception, he says, "even those small barriers" should be considered unacceptable.

As Chief Justice John Roberts put it clarifyingly, Verrilli's claim is that "the compelling interest is that employees get the services through the insurance plan that was set up by [the petitioners].…The point is that it's the form that the services are provided in and not the services themselves."

Does the government really have a compelling interest in making sure women can not just get free birth control but get it without so much as filling out any paperwork? Is needing to enroll in a separate plan from my employer's—even if the supplementary plan will be paid for by the government—such an enormous obstacle to my good health as to warrant trampling the religious liberties of the Little Sisters of the Poor and others?

One of the lawyers representing the petitioners, Noel Francisco, provided some evidence that the government's so-called "compelling interest" might not be quite as compelling as Verrilli was making it out to be: He pointed out that Congress and the Court have already exempted lots of exmployers—religious and secular—from the requirement that the insurance plans they offer their workers cover contraceptives. They've even allowed some insurance policies that don't include the coverage to be "grandfathered" in under the law.

Why would the government be "compelled" to make sure the Little Sisters' employees have this particular coverage—and that they get it in this particular way, through an insurer the Little Sisters have a contract with—but not the people who work for Hobby Lobby or the local Baptist church? "At a minimum the government needs to explain why all of those other ways are sufficient for all of those other people," but no exemption is possible here, Francisco said. Why is the government "willing to tolerate it or look for other ways" in those cases but not this one?

Chief Justice Roberts, for his part, twice referred to what the government is trying to do as "hijacking" the contracts that the petitioners have entered into with their health insuranace providers.

The solicitor general denies that, saying employers like the Little Sisters need only fill out a form objecting to providing the coverage. The government will then "make a separate arrangement with the insurer that's in parallel." He claims the employer-provided plan is not the vehicle through which this "independent" contraception coverage will be delivered.

"We think it doesn't count as a substantial burden because"—although the government is insisting the same insurer that provides the employee's existing insurance also provide the contraception coverage—"from the perspective of the employer, it's separate."

But if they're really different vehicles, and if they're really totally separate, one wonders what it is that makes the provision "seamless," as Verrilli says it must be.

NEXT: Paul Ryan's Refusal to Criticize Donald Trump By Name Gives Trump a Pass

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  1. The government’s position here is absurd and would if adopted read the free exercise clause right out of the constitution. Remember, birth control is legal and available in all 50 states. Also, remember, you can get insurance that pays for your birth control. What you can’t get, at least before Obamacare, was insurance that automatically covered birth control and was paid for by everyone in the pool.

    So we are going to force people to violate their religious beliefs and pay for birth control because there is a compelling interest in women being able to get birth control for artificially low prices.

    Imagine that precedent applied to other infringements on religion. If slightly cheaper birth control is a compelling need, then anything is a compelling need.

    1. If slightly cheaper birth control is a compelling need, then anything is a compelling need.

      Yeah, if it clears that hurdle, the Free Exercise clause is meaningless.

      Better solution, of course, would be to make birth control OTC, but then Planned Parenthood and the drug companies would lose their slice.

      1. Better solution, of course, would be to make birth control OTC

        Why not put it in the water like fluoride? Seamless for the win

      2. I’ve been told that “you people are so clueless” in response to that suggestion. I haven’t yet been told who “you people” are or why it’s clueless.

        1. As I understand it, “you people” generally means ::looks around, lowers voice:: black people.

        2. It not being included on your insurance is a intolerable burden on women. Yet, having to go to a doctor and get an exam rather than just buy it like aspirin is not?

          I can’t decide if these people are really this stupid or they know full well how ridiculous their position is and won’t be honest and just admit the whole thing is just an excuse to effectively ban religious practices they don’t like. .

          1. Fuck, I hate agreeing with John.

            1. What do you mean? Smart assholes are how we figure out the truth, especially enthusiastic smart assholes.

              I should know.

              1. If we only had more enthusiastic assholes, we wouldn’t need all that birth control.

          2. John, all they have to do is put a token offering on the Emperor’s shrine. What is the big deal?

            The point seems to be to make everyone effectively complicit to what the Left considers moral. It comes across in the way they argue social programs lately. For instance, if you are willing to take Social Security then you cannot argue against any other redistribution program.

            1. That one really drives me up a wall. They forcibly take 15% of my salary for a program i never supported or wanted. But if I ever take the meager benefits they offer in return and don’t immediately write a check for that amount back to the government, I am precluded from objecting to any government social program.

          3. I’m going with dishonest.

          4. Wasn’t the issue settled to the satisfaction of Positive Christianity in the 24th of the 25 Points?
            “24. We demand freedom for all religious denominations within the state as long as they do not endanger the state or violate the ethical and moral feelings of the Germanic race.”

      3. Condoms are OTC. But OTC means “not free”.

      4. To antichoice looters the “Free” in free exercise thereof really means coercive, just as by their blinders the Fourteenth Amendment begins with “All ova fertilized…” (which interpretation the GOP is determined impose through legislation). In the instant case, the division is simply a matter of whose ox is getting gored. The Over-The-Counter approach would, like all abolition of prohibition, solve the problem, and will therefore draw the boiling wrath of both looter camps.

    2. Wouldn’t subsidizing birth control drive up the actual price though? I get an individual may be paying less due to “insurance” but overall i think putting it on insurance would make it more expensive. Not that progs really care about costs

      1. Yeah, but if everyone is paying for it, it’s free.

        I don’t understand it, either, but the left assures me that’s how it works.

      2. Are ebola, yellow fever or hepatitis vaccinations “free” from the Center for Disease Control? The answer may depend on whether the danger of an epidemic is a public menace or health hazard at the time the question is posed. A health hazard is that which decreases the life expectancy at birth of a population. All irony and Julian Simon books aside, that is what I see when I look at the graphs of human population at http://www.worldometers.info/. Nigeria, dominated by christians and mohammedans in a fairly even match, displays a curve I’d wager (if betting were legal) will soon lead to the local Armageddon and Apocalypse both factions eagerly strive toward.

    3. Imagine that precedent applied to other infringements

      “Yeah, we need house 50 soldiers and their equipment in your garage for a week. We have a compelling interest because of national security. It’s not a 3rd Amendment issue because your garage is not your house.”

      1. Exactly. It’s like if my parent’s guest cabin (which is less than 100 ft from the house) was occupied by the Feds for some purpose, they’d have no recourse to the 3rd Amendment because of compelling interest.

  2. 1. Does the law “substantially burden” a person’s exercise of religion?
    2. Does the law further a “compelling government interest”?
    3. Does the law use the “least restrictive means” to further the compelling interest?

    1- If yes then the law is unconstitutional

    2- The only legitimate government interest is the defense of individual’s fundamental rights. Does the law further that interest? If not, see no. 1

    3- Moot.

    1. * amend 1. to ‘Does the law ” burden” individual’s fundamental rights?’

  3. I dont understand why we are reading about this case. Didn’t Obumbles order them not to hear it?

  4. The point is that it’s the form that the services are provided in and not the services themselves.”

    Exactly, The government wants that form to be one that publicly and irreversibly associates the nuns with providing birth control. That’s the entire point – to punish these people for trying to adhere to their religion.

    1. They adhere to the wrong religion. What did they expect?

    2. That why I never vote for Protestants.

  5. Catholics hate women’s health.

    1. They’re doin’ it wrong, then, because various Catholic systems spend tens of millions of dollars every year providing charity care to women.

      1. But Catholics are intolerant. That means the charity doesn’t count because they are bad people.

      2. various Catholic systems spend tens of millions of dollars every year providing charity care to women.

        Nikki will explain to you how that’s actually a monstrous depravity, because they don’t tell the women upfront that they are not a “full service” health care provider (i.e., they’ll refer you to a different hospital for an abortion).

      3. Yeah, but they selfishly insist on doing in on their terms. They have no business providing charity care to indigent women unless they’re going to do it on the government’s terms.

    2. I asked my wife if my office taking a slice out of everyone’s paychecks in order to keep the men’s room stocked with condoms and spermicidal lubricant would be okay.

      She said, “Are there any women who work there?” I said yes. She said, “Why should they have to pay for your condoms, they can’t even use them?”

      Love this woman.

  6. Assuming Roberts doesn’t repeat his previous performances on the ACA, what direction does a 4-4 tie go (what was the lower court ruling)?

    1. 4-4 “upholds” the lower court (as in, doesn’t overturn it), but has no precedential effect, I believe.

      1. Correct.

      2. That’s correct. What was the lower court’s ruling?

        Also, shouldn’t Justice Kagan recuse herself? Not that she did during the other ACA cases, but still…

        1. She’s above all that bro, all 4’6″ above all that.

        2. It consolidated over a half-dozen cases. I think one of those was ruled in favor of the plaintiffs (8th circuit I think?) and the rest in favor of the government.

  7. Birth control is a basic right that is supposed to be paid for by someone else. If someone has to pay for it themselves, then it might as well be taken away. After all, not giving is taking. All reality-based people know this.

    1. It’s no longer just that not giving is taking. Now, not giving seamlessly is taking.

    2. It’s science, sarcasmic! What are you, some kind of science-denying flat-earther TEATHUGLIKKAN? I fucking love science!

    3. Similarly, the fact that someone else isn’t paying for my subscriptions to Mother Jones and The Nation means my First Amendment rights are being infringed. The fact that your subscriptions to Reason and National Review aren’t being paid for by someone else simply illustrates that hate speech isn’t free speech.

      1. By that logic, my Second Amendment rights are being infringed. I have a right to a Kimber 1911

        1. Works for me.

  8. A child is not a disease to be “cured”. A pregnancy is not a disease. For the government go force anyone to do something against their conscience at the point of a gun (by law) is preposterous, tyrannical, and unconstitutional. Bah!

    1. That just means the person’s conscience is wrong, and they are in need of reeducation.

    2. Even if your first a and second sentences were wrong, I’d agree with your third.

    3. What about crackbabies?

      1. They become super-predators.

    4. The government forces me to pay for their drone murder campaigns every two weeks.

  9. I love the chant, “Not the church, not the state, we deserve to decide our fate.” Paging Orwell, or Nabokov, or maybe both.

  10. Now, just for fun –

    I was recently visiting with someone that works in mining. I asked him about a tin mine in SA because he knows a man who used to be mine manager there and I wanted to know how he was doing. The mine is high up on the altiplano in Bolivia. Unfortunately the man has passed away but I did hear a good story about him.

    He got altitude sickness while he was there so they got an oxygen bottle from the welding shop and rigged up a mask for him. The only way in and out was by rail. All they had was a hand car so they put him on that and two other Englishmen started down the rails – squeak SQUEAK squeak SQUEAK squeak SQUEAK. About halfway down they met a train coming up. The train was filled with men and had hundreds hanging off the sides, on the roof, sitting on the cow catcher etc. You know what that looks like if you have ever been down there.

    They both ground to a halt. The Englishmen explained that they were desperate to get the sick man to the coast so that he could recover. Sympathetic, about fifty Bolivians got off of the train and lifted the hand car off of the rails manually, let the train pass, and then manually put the hand car back on the rails. A close call, so the Englishmen thanked them very sincerely. The Bolivians said they were glad to help, they had no quarrel with them.

    Their gripe was with that goddamned greedy capitalist mine manager up the mountain! They were going to hang that gringo motherfucker!

    True story.

    1. that is priceless.

  11. The amazing thing about this is, it might actually be “seamless” if you didn’t need an Rx. Why is filling out an extra insurance form more of a burden than going to the fucking doctor in the first place?

    1. Agreed, Nikki. It can be “seamless”, or involve the government, but not both.

      1. I’m counting requiring an Rx as an additional layer of government interference, if that wasn’t clear.

    2. ^This. The only people who can actually deny a person access to birth control are the doctor and the pharmacist.

    3. You only think that Nikki because you are being honest and think this is about women and women’s health. For the government this is about control and forcing people to do what they are told. And making BC over the counter doesn’t further that.

    4. And why does this have anything to do with one’s employer or job? Can’t be seamless if I have to have job first.
      Get health insurance out of the workplace… problem solved.

  12. It’s About When the Government Can Force You to Violate Your Conscience.

    Paging Thomas More. Pick up the white courtesy phone. After you pick up your head next to the guillotine.

    1. A few hundred years too early for the guillotine.

      1. Which only the Revolutionary French ever really used.

        More was hung, as is proper for an Englishman convicted of treason (such as it was).

        1. He may have been hung, but he died when he was hanged.

  13. Do The Little Sisters of the Poor really have time to argue this case? Don’t they have to get ready for the Ohio State game in September?

  14. Dictating what’s included in employee health care coverage should be no concern of the government at all.

    1. Imposing tax law that incentivises companies to offer health insurance as a benefit is the first mistake. All else flows from that.

      1. That’s one of a handful of problems. The AMA’s monopoly on med schools, and keeping that number as low as they have is another. More drugs need to be OTC, nurse practitioners should have a lot more authority to do routine medical work than they do, and people should be allowed to purchase health insurance across state lines.

        These are all pro-liberty reforms that would lower the cost of health care and health insurance, but will never happen.

        1. Waaay back when Obama said they were going to reform health care, most of the things on that list popped into my mind. Then it quickly became apparent that “reform” meant none of those things. I mean, there really was an “historic” opportunity to improve the situation. What a disappointment, what a shame.

  15. The government’s position seems to be:

    “Damn those nuns. They’ll pay for birth control, as God is my witness. “

      1. Rob Ford drinks coffee

  16. No woman in America will have contraception if there’s any possible chance she’ll have to pay for it or exert any effort at all to get it [except for visiting a doctor, and you’re a woman-hating monster if you suggest it should be OTC].

    Meanwhile millions of men buy condoms, or get them for free from activist groups or clinics.

    I can’t take these people seriously anymore.

    1. It is like they claim women are the inferior sex.

      1. How are condoms not BC for women also?

  17. Dude that looks like its gonna be really good. WOw.

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  18. Oral arguments, oral arguments, oral arguments. I’m sick of hearing about oral arguments. When are we gonna get to hear about the anal arguments?

  19. The gov’t shouldn’t be able to force us to do ANYTHING aside from forcing us to not violate the rights of others. In other words, this isn’t supposed to be about conscience–we should be able to do anything we want, conscience be damned, so long as the parties involved are all consenting and capable of consent or if using force to defend against an attack.

  20. How about mental health coverage that requires employer provided lap dances?

  21. Quit saying “free contraception”. It isn’t free. It is paid for by other people. If you are poor, you can easily get subsidized birth control pills. This is “free” BCP’s even if you make a million a year.

    Why the insanity? Why pay for rich women’s BCP’s? We had a non-issue. BCP’s are available at Walmart or Walgreen for dirt cheap. Regulations like this benefit one group only: Big Pharma.

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