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.
Freedom of religion vs. freedom of worship: what’s the difference? If one’s respect for life is grounded in faith in God, is that respect somehow inappropriate for the public square? Is freedom to bear public witness to one’s faith at risk? Perhaps the plaintiffs in New Hampshire’s buffer zone suit could offer some insight into those questions. For today, though, I look to someone with a national perspective.
I was in media row at a convention in 2013 when Eric Metaxas took the stage to polite applause. Fourteen minutes later, he finished to a standing ovation. His topic: the state of religious liberty in the United States. His speech bears re-hearing during this Fortnight for Freedom with the theme “freedom to bear witness.” (The video is from C-SPAN, taken at CPAC 2013. If it does not show up embedded in this post, click on the link below.)
Among his many books, Metaxas has written about William Wilberforce (1759-1833), English politician and opponent of slavery. “It’s the story of what happened to things when a man drags religion into the public square and when he allows it to affect how government behaves. Result: the government was forced to abolish the slave trade.”
“…we must remember that the voices of faith in history have sometimes been the only voices on the right side of an issue — when everyone was saying shut up and move along. Remember that Martin Luther King, Jr. and Rosa Parks and Jackie Robinson were motivated by their faith in Jesus of Nazareth….So the story of faith is and must always be the story of faith in public life. We are not to hide our light under a bushel. And if shining our light comes with a price, so be it. We must pay that price and should be glad to pay it, even if, as in the case of Bonhoeffer, that price is our lives. Sometimes the price is facing a cocked gun, and sometimes it is the threat of a cocked eyebrow.”
An attempt to repeal New Hampshire’s buffer zone law failed on a 12-12 vote Thursday in the New Hampshire Senate. Republicans Jerry Little of Weare and Nancy Stiles of Hampton joined the Senate’s ten Democrats in opposing the repeal measure, HB 403. Immediately after the vote, Senators tabled the bill on a voice vote. No amendments were formally proposed.
House Bill 403 would repeal the law passed last year putting public areas within up to 25 feet abortion facilities off-limits at the discretion of facility managers. The law has been under court injunction since last July, shortly after it was signed by Governor Maggie Hassan. Seven New Hampshire residents have filed suit to overturn the law. Their case, Reddy v. Foster, has been stayed repeatedly pending the outcome of HB 403.
The surprise: no amendments
Despite speculation among spectators before the vote, no buffer zone supporter tried a repeal-and-replace tactic. The only allusion to such a possibility was made by Senator Little, who mentioned in his floor speech that he was surprised not to find support among buffer zone supporters for the kind of “bubble zone” law in effect in some other states. Bubble zones, while restrictive, typically do not put public areas completely off limits to First Amendment activity.
Voting to pass HB 403 and repeal the buffer zone law: Senators Jeanie Forrester of Meredith (district 2), Jeb Bradley of Wolfeboro (dist. 3), Sam Cataldo of Farmington (dist. 6; co-sponsor of bill)), Andy Sanborn of Bedford (dist. 9), Gary Daniels of Milford (dist. 11; co-sponsor), Kevin Avard of Nashua (dist. 12; co-sponsor), Sharon Carson of Londonderry (dist. 14; co-sponsor), David Boutin of Hooksett (dist. 16), John Reagan of Deerfield (dist. 17), Regina Birdsell of Hampstead (dist. 19; co-sponsor), Chuck Morse of Salem (dist. 22), and Russell Prescott of Kingston (dist. 23). Bradley was one of the sponsors of the original buffer zone law, but he supported repeal today.
Voting to reject HB 403 and keep the buffer zone (and its litigation) in place: Senators Jeff Woodburn of Dalton (district 1), David Watters of Dover (dist. 4), David Pierce of Lebanon (dist. 5), Andrew Hosmer of Laconia (dist. 7), Jerry Little of Weare (dist. 8), Molly Kelly of Keene (dist. 10), Bette Lasky of Nashua (dist. 13), Dan Feltes of Concord (dist. 15), Donna Soucy of Manchester (dist. 18), Lou D’Allesandro of Manchester (dist. 20), Martha Fuller Clark of Portsmouth (dist. 21), and Nancy Stiles of Hampton (dist. 24).
The subsequent motion to table came from Jeb Bradley.
Notes on the debate
Carson moves Ought to Pass; Soucy counters with her favorite talking points. Judiciary Committee chair Sharon Carson urged her colleagues to adopt the committee’s “ought to pass” recommendation. Noting that the New Hampshire law is modeled on a Massachusetts law thrown out by the U.S. Supreme Court, she said, “What we have is a law on our books that is unconstitutional.”
Donna Soucy, who was the chief sponsor of the buffer zone law, was first to counter Carson’s recommendation. She trotted out her oft-repeated assertion that the Massachusetts and New Hampshire laws are different because of the size of the respective zones. She also claimed that New Hampshire’s law is flexible (“up to 25 feet”). “This is about access to basic health care.” She said she had introduced the law in response to people being “yelled at and obstructed” as they tried to enter abortion facilities.
Senator Soucy neglected to mention what has been brought out over and over again at hearings on the original law and the repeal bill: there are no police records to support claims of ongoing harassment or lawbreaking at any abortion facility in the state; the New Hampshire zone is “flexible” because, if enforced, it would give abortion providers sole control over posting, placement and enforcement hours (input by public authorities would be strictly advisory); and the Supreme Court threw out the Massachusetts law because the state had failed to try less restrictive measures to control activity outside abortion facilities.
The Republicans who created the tie: Senator Stiles argued against repeal, claiming that a Pittsburgh buffer zone was recently upheld in federal court (not at the Supreme Court level.) She did not enlighten her listeners with the reasoning behind that court’s decision or how the Pittsburgh and Massachusetts laws differ. She also said New Hampshire’s buffer zone law is “enabling, not mandatory.” Yup – it enables abortion providers, essentially private entities, to determine who may occupy public spaces near abortion facilities.
Senator Jerry Little wasn’t around when the buffer zone law was passed, but as district 8’s new senator he stood by the law co-sponsored by his predecessor Bob Odell. “It won’t come as a surprise that I’m pro-choice in my beliefs,” said Little today, adding that he thought abortion should be “legal, rare and safe.” He thinks the buffer zone law, unenforced though it may be, somehow contributes to safety. No word from him on how existing laws on trespassing, disorderly conduct and the like might contribute to safety.
Avard draws the most fire: All those early speakers, had they but known it, were merely setting the table for Senator Kevin Avard. His speech in favor of repeal was if anything even shorter than Carson’s. “I believe in freedom of speech and equal protection – the First and Fourteenth Amendments.” He believes the buffer zone law violates both of those constitutional provisions. He was then questioned at length by four colleagues who are ardent defenders of the buffer zone. Senators Feltes, Woodburn, Lasky and Hosmer went in order, with the questions becoming more sharply pitched each time. At no point did Avard lose his cool or his focus.
Feltes to Avard: “This is women’s health week.” Why do you think repeal of this safety zone is appropriate now? Avard: “This is about speech.” Feltes: “Do you support any buffer?” Avard: “I support the First and Fourteenth Amendments.”
Avard pointed out how legislation on a labor matter a few years back sparked a noisy crowd of citizens opposed to the bill. (I was there. I remember it well.) He said legislators supporting the bill were followed through the State House halls and onto surrounding sidewalks by people shouting at them, and “we managed without any buffer zone” to restrict the speech or the presence of the irate citizens.
Woodburn politely asked Avard a question: do you mean women going in for health care should get the same treatment as politicians? Personally, I was irked at that – I smelled a whiff of women being infantilized – but Avard didn’t go down that road. He replied with a question of his own for Woodburn (which the District 1 senator treated as rhetorical): “Is it intimidating if people [outside abortion facilities] are just praying?”
Hosmer was willing to take up that one. “Proximity of prayer really has no effect on the power of the prayer” – so why should the size of the buffer zone matter? Avard would not be pulled off his message – “First and Fourteenth Amendments.” Hosmer brought up the buffer zone around military funerals (also cited by some of his colleagues), asking Avard if he supported that. Avard replied, “I don’t know about that. The bottom line is I believe in freedom speech and equal protection under law.”
Yet to come
If the parties to Reddy v. Foster were waiting to see what legislators would do with the repeal bill, they can stop waiting.
The buffer zone is still on the books, and barring a change of heart from one senator, the repeal bill is dead. It could be taken up again anytime before the Senate adjourns in June, but I saw no signs of a wavering vote at Wednesday’s session. No one will move to take the bill off the table unless one side or the other lines up a thirteenth vote.
My day ends with questions: will abortion providers go ahead and post signs delineating buffer zones? Will Governor Hassan and Attorney General Foster give the go-ahead to county attorneys to proceed with enforcement? Will the federal judge hearing the case schedule a hearing soon? Will laws against trespassing, disorderly conduct, criminal threatening, and even parking violations ever be enforced in an attempt to control the problems cited by buffer zone supporters? Will buffer zone fans be content to have a law on the books that remains unenforced?
I’m sure the answer to the last one is a firm no. As to the rest, I have no idea.