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.

Gosnell grand jury: “license abortion clinics as ambulatory surgical facilities”

As the Supreme Court hears a case involving a Texas law mandating that abortion facilities be given the same regulatory treatment as ambulatory care facilities, the Gosnell grand jury report from 2011 reminds us what happens when pro-abortion ideology trumps women’s health. I hope the Justices find this report somewhere amid the many briefs that have been filed in the Texas case.

quote from Gosnell grand jury

Gosnell was in Pennsylvania, but the recommendations of the grand jury are of interest to anyone who cares about public health in any state. From page 248 of the grand jury report, under “Recommendations”: “The Pennsylvania Department of Health should license abortion clinics as ambulatory surgical facilities.”

“The regulation of Pennsylvania’s ambulatory surgical facilities – which run over 30 pages – provide a comprehensive set of rules and procedures to assure overall quality of care at such facilities. The effect of the Department of Health’s reluctance to treat abortion clinics as ASFs was to accord patients of those facilities far less protection than patients seeking, for example, liposuction or a colonoscopy….Gosnell’s facility fell far below the basic, minimum standards of care that any patient having a surgical procedure should expect to receive. There is no justification for denying abortion patients the protections available to every other patient of an ambulatory surgical facility, and no reason to exempt abortion clinics from meeting these standards.”

Does the Texas law at issue today create stronger regulations on abortion providers than on, say, liposuction providers? Based on their questions today, some Justices apparently think so, and they don’t like it. I wonder how many of them would object if they believed the law simply required parity with ASFs.

Today at the Supreme Court of the United States, our nation’s solicitor general argued against the Texas law, calling it an “undue burden.”

The Pennsylvania Family Institute and Council anticipated that argument. Their words: “Ask the women who went to Kermit Gosnell if lower standards for abortion clinics is a good thing.”

From Pennsylvania Family Institute.
From Pennsylvania Family Institute.

 

Supreme Court to hear Texas abortion arguments

supreme-court-dot-gov
photo from supremecourt.gov

A few thoughts on the eve of U.S. Supreme Court arguments about a Texas abortion law:

  • What’s at issue is a piece of the Texas abortion regulation that was passed only after a huge uproar in Austin. Wendy Davis and her pink-sneakered filibuster couldn’t prevent passage of the legislation almost three years ago. It took some fast action to get the case to the Supreme Court in less than three years. The Massachusetts buffer zone case took much longer than that.
  • I’m indebted to Steve McDonald of GraniteGrok for pointing me to a post from The Federalist that makes a point not yet stressed in most coverage of the case, Whole Woman’s Health v. Hellerstedt: there are parts of the Texas law that aren’t even being challenged. “Almost three years ago the Texas legislature enacted HB2, the principle [sic]components of which are (1) restricting abortions after 20 weeks, when we know the unborn child can feel pain; (2) requiring abortionists to comply with the Food and Drug Administration’s approved protocol on chemical abortions; and (3) ensuring that abortionists would have to comply with basic health and safety standards….[the] prohibition on abortions after 20 weeks remains unchallenged.…The Court will not consider that part of the law because the abortion industry, despite its claims about harm to women and Wendy Davis’s rhetoric, has chosen not to challenge it.” [emphasis added]
  • The omnibus Texas law was a direct response to the Gosnell case in Pennsylvania – in effect, a Gosnell prevention act. It’ll be interesting to see if that comes up in tomorrow’s oral arguments.
  • With the recent death of Justice Scalia, observers with more time than I for Court-watching have suggested that a 4-4 split is likely in this abortion-law case, which would leave lower-court decisions intact. Any decision in the case is weeks or months away.

I’ll be looking to scotusblog.com for updates on this week’s arguments.


 

Freedom of (some) information: SCOTUS rejects hearing on NHRTL case

DSCF9895The Supreme Court of the United States giveth, and the Supreme Court taketh away, and sometimes the Supreme Court says “go away.” An important New Hampshire case got the go-away treatment on November 16, as the Court declined to hear New Hampshire Right to Life v. Department of Health and Human Services. 

As my constitutional law professor stressed to me years ago, “A decision not to make a decision is still a decision.” This one went the wrong way.

NHRTL president Jane Cormier said, ““We would have been thrilled if the U.S. Supreme Court had taken on our case. NHRTL has been very concerned with the lack of transparency within the Obama administration. Despite the fact the NH Executive Council voted down the funding of PPPNE in 2011, US Health and Human Services chose to fund Planned Parenthood without going through proper state approval or even follow federal regulations requiring competitive bidding.”

Jane Cormier, NHRTL President (E. Kolb photo)
Jane Cormier, NHRTL President (E. Kolb photo)

This was effectively a victory for Planned Parenthood of Northern New England, which since 2011 has fought efforts by New Hampshire residents to find out how a federal grant to PPNNE seemed to appear out of nowhere after the New Hampshire Executive Council in June 2011 denied a PP contract proposal. NHRTL sought documents under the federal Freedom of Information Act (FOIA) to find out how the federal grant was made. PP produced some of the requested documents, with parts redacted. It refused to produce others – in particular, its Manual of Medical Standards and Guidelines. FOIA grants exemptions for “trade secrets” and material that could harm a party in a future competitive bidding process, and PP successfully claimed that the Manual falls under that exemption.


By the way, NHRTL’s FOIA request for the Manual was not out of line. PP had to produce its Manual to the government in order to get the federal grant – a point made by two Justices who dissented from yesterday’s announcement.

It would have taken four out the nine Supreme Court justices to accept the case. Normally, denials are made without comment. In this case, though, Justice Clarence Thomas took the trouble to publish his reasons for wanting to grant a hearing, and he was joined by Justice Antonin Scalia. They are troubled by conflicting lower-court rulings in FOIA cases about documents that are exempt from release. “The First Circuit’s decision warrants review. It perpetuates an unsupported interpretation of an important federal statute and further muddies an already amorphous test. For these reasons, I respectfully dissent from the denial of certiorari.” (See the PDF of Justice Thomas’s remarks at page ten of this link at supremecourt.gov.)

Neither Thomas nor Scalia took the side of one party over the other. They simply pointed out that lower courts in FOIA cases around the country have made conflicting rulings about what can be exempted from FOIA requests. That’s the sort of situation that normally makes a case ripe for Supreme Court review. I wonder if the Court would have taken the NHRTL case if the names of the parties had been different.

Alliance Defending Freedom, which with local attorney Michael Tierney represented NHRTL in court, released a statement after this week’s Court action. “HHS says it can’t release the documents because doing so might affect Planned Parenthood’s ‘competitive position’ if it faces a commercial grant competitor in the future. HHS also refused to produce information about its own debates over how to sell the controversial decision to the public.”

A related but separate petition arising from the 2011 Executive Council decision is pending before the New Hampshire Supreme Court, New Hampshire Right to Life and Jackie Pelletier v. New Hampshire Director of Charitable Trusts Office (docket #2015-0366).

“New Hampshire’s Executive Council recently voted to again eliminate state funding for Planned Parenthood,” noted Cormier. “We will need to be vigilant to ensure this type of back-door unaccountable funding does not occur again.”

Meanwhile, as it did in 2011, PP blames the Executive Council for attacking women’s health care by denying PP a contract a few months ago. It’ll be interesting to see PP’s 2015 financial statements, which should reveal how much or how little PP is shifting its priorities away from public policy ($1.5 million in 2014, plus a lobbyist’s salary) and towards clinical care.

Little Sisters and other resisters

Pope Francis visiting Little Sisters of the Poor. Photo from littlesistersofthepoor.org.
Pope Francis visiting Little Sisters of the Poor. Photo from littlesistersofthepoor.org.

My mom, God rest her, once quipped that the three biggest lies in the world are “the check is in the mail,” “of course I’ll love you in the morning,” and “I’m from the government and I’m here to help you.” I can add a fourth to the list: “They’re coming for your birth control” – a lie that has gained some currency, as a quick Web search will verify.

Brace yourself for more. A year and a half after the Hobby Lobby cases, the U.S. Supreme Court has announced it is taking up more challenges to the contraceptive mandate of the so-called Patient Protection and Affordable Care Act. (The ghost of George Orwell groans with every repetition of that title. I’ll use “Obamacare,” hardly a slur if the President takes as much pride in the law as he says he does.) The Little Sisters of the Poor, among others, will argue that they should not have to be involved in employees’ decisions to use contraception. The Administration holds an opposing view.

Inconvenient truths


The they’re-coming nonsense ignores a few facts: people who don’t want to pay for someone else’s contraception or abortion-inducing drugs are not “coming to take” them; access does not mean “free”; religious liberty under the First Amendment includes religious practice, not mere freedom to worship – at least until and unless the Supreme Court chooses to eviscerate the First Amendment; Americans with religious objections to contraception (myself, among others) want not to be forced to subsidize or provide it to others.

Recall that in this context, “religious” isn’t limited to Catholic. The Hobby Lobby case was won by evangelical Protestants, and the companion Conestoga Wood Products case involved Mennonites. Recall as well that those cases were decided on extremely narrow grounds, with the Court majority acknowledging that it was not addressing the First Amendment issues raised by the plaintiffs. Instead, the decision rested on a statute, the Religious Freedom Restoration Act (RFRA). It was left to Justice Ginsburg and the other three Justices in the minority to say that the First Amendment didn’t protect the plaintiffs in their claim at issue. One more Justice being swayed to that view could make the Little Sisters’ case what Hobby Lobby was not: a landmark in constitutional law.

At issue

I am indebted to SCOTUSblog.com and Helen Alvare, Esq. of Women Speak for Themselves for their research and reports on the cases to be heard by the Court. I am mentioning only a few of the issues. Any errors in the following summary are my own.

The Little Sisters are arguing that their sincerely-held religious beliefs, no less than those of the Hobby Lobby plaintiffs, are protected by RFRA. In order for the federal government to prevail, if the Court limits itself to the actual issue in question, it would have to show that the Obamacare contraceptive mandate and the Administration’s efforts to “accommodate” religiously-affiliated employers do not amount to a burden on the Little Sisters’ free exercise of their religious beliefs. Further, the government would have to show that it has a compelling interest in forcing the Little Sisters to violate those beliefs. It would have to show that there is no other way to get “free” contraceptives to the Little Sisters’ employees.

The federal government is quite comfortable making all those arguments. The President and his HHS secretaries – first Kathleen Sebelius, Obamacare’s virtual doula, and now Sylvia Burwell – will litigate challenges to the mandate regardless of time or cost required.

About that “accommodation” for religiously-affiliated employers: employers who provide health care for workers are supposed to advise insurers, or the agencies administering health insurance, to cover contraception as a “preventive” health care item. To accommodate employers like the Little Sisters, the Administration crafted a regulation that allows those employers to advise the government of its objections to the contraceptive mandate, but then requires the employers to provide the government with all the information it needs to provide contraceptive coverage to employees.

The Administration calls this an opt-out for employers. Nope, assert the plaintiffs. Under the accommodation, the government simply turns around and does the paperwork that makes contraceptive coverage part of the health insurance plan provided by the employer. The employer is thus forced to be a party to providing something in violation of the employer’s sincerely-held religious beliefs. To compound the burden on the employer, there are financial penalties for failure to cooperate with the mandate.

We’ve met you halfway, say the feds. You don’t get to tell us what constitutes a violation of our religious beliefs, say the plaintiffs.

Back to “They’re coming for your birth control”

Nowadays, when I hear anything about a threat to women’s basic preventive health care, I immediately go on high alert. The currency of language regarding health care has become so debased that no one can or should take it at face value. “Threat to basic preventive care” has become code for “someone’s trying to get out of paying for your contraception” – a far cry from denying “preventive” care.

The Little Sisters of the Poor are nuns, for God’s sake (literally). They care for the elderly poor. Their vision statement sounds like something that ought to be encouraged: “to contribute to the Culture of Life by nurturing communities where each person is valued, the solidarity of the human family and the wisdom of age are celebrated, and the compassionate love of Christ is shared with all.

”

These are the women who are challenging the mandate. Theirs is the ministry that will be crippled if they have to pay fines. These are the people the Administration and other mandate supporters want to force into compliance. The Sisters take a vow of obedience, all right, but in doing so the Sisters in the U.S.A. didn’t surrender their constitutional rights.

Most inconvenient truth of all, in the face of the mandate: women aren’t broken and they don’t need to be fixed. Calling contraception “preventive” health care is the same as saying that women in their childbearing years are defective. Treating contraception as a choice, an option, is far different from treating it as a public health imperative.

It just might take a group of nuns to drive that point home.