Supreme Court, minus Scalia, takes on religious liberty

If I could see the Supreme Court Justices today for one minute, all I’d say to them is this: leave the nuns alone, already. The president’s not listening. Maybe the court will.

The fuss over Obamacare’s contraceptive mandate may have been off the front pages for awhile, but the Little Sisters of the Poor are raising the mandate’s visibility again. Good for them. They and several other petitioners are at the U.S. Supreme Court today, politely asking the Justices to prevent the federal government from forcing the petitioners to act in violation of their faith.

The contraceptive mandate (also known as the HHS mandate, in a backhanded tribute to the federal agency that promoted it) is based on Obamacare’s definition of contraception as a “preventive” service for women. (Not for men, mind you.) The idea was for insurance plans, including employer-provided plans, to cover contraception without a co-pay. Employers offering health insurance as a benefit would thus have to subsidize contraceptive use by employees.


The Little Sisters, women one and all, are having none of it. So far, litigation has spared them the punishment the government promises to mete out to balky employers. Today, the litigation begins its final stage.

Contraceptives include abortion-inducing drugs and devices. You’ll recall that the Hobby Lobby decision, decided on extremely narrow grounds, rested on the company’s willingness to pay for most kinds of contraception but not the ones that actually induce abortion.

Where does that leave Catholic entities like the Little Sisters, when providing contraception goes against their religious beliefs? Making contraception available under their health insurance for employees, even indirectly, makes the Sisters complicit in activities their religion sees as immoral. When the federal Obamacare exchanges exist, allowing people to buy insurance independent of their employers, why should employers be threatened with ruinous fines for not bowing to the mandate?

This isn’t solely a Catholic thing. Other petitioners today include Baptist and Nazarene institutions. What unites the petitioners is a firm belief that the government has no business telling them what their respective religions allow. Read more about the challenges to the mandate on the web site of the Becket Fund for Religious Liberty.

The feds have come up with one supposed “accommodation” after another in an attempt to make religious objections to the mandate go away.  The feds have failed.

One fact is particularly damaging to the government’s dogged insistence that “free” contraceptives for women are a basic right: companies and agencies employing a total of one-third of Americans are already exempt from compliance with the mandate. The federal government has let the military, the city of New York, and Exxon off the hook, to name just a few. For some reason, though, the Little Sisters of the Poor have to go to court to vindicate their rights.

The Sisters’ ministry is to the elderly poor. Fines for noncompliance with Obamacare will harm not only the Sisters themselves but the people they serve. “So cover the contraceptives,” say mandate supporters, sounding a bit thuggish. Nice clients you have there. It’d be a shame if anything happened to them.

The Supreme Court split 5-4 in favor of Hobby Lobby, with an extraordinarily bitter dissent from Justice Ginsburg. One of the five in the majority, Antonin Scalia, has since died and has not been replaced. A 4-4 split would leave lower court decisions intact, which would be bad for today’s petitioners.

The lawyers for the petitioners can do math. They know the odds. They also know the First Amendment is alive and well, including protection for freedom of religion. As with the rest of the Bill of Rights, the First Amendment was not put in place to protect selected majorities but to protect all Americans.

You go, girls.