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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.