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Q & A: Little Sisters of the Poor v. Burwell

With Princeton's Matthew J. Franck, who sides with the sisters on contraceptive mandate

Nuns supporting Little Sisters of the Poor, attend a rally in front of the US Supreme Court, March 23, 2016 in Washington, DC. (Photo by Mark Wilson/Getty Images)
Nuns supporting Little Sisters of the Poor, attend a rally in front of the US Supreme Court, March 23, 2016 in Washington, DC. (Photo by Mark Wilson/Getty Images)

After Wednesday’s oral arguments before the Supreme Court on the latest challenge to the Affordable Care Act, CQ’s Todd Ruger reported that the high court seemed “split between the Obama administration’s aim to provide contraceptive coverage to all women and the objections of religious nonprofit groups to their role in that process.”

The mandate in the health care law passed six years ago this week requires most employers offer health insurance coverage that includes free birth control. Religious nonprofits can be exempted if they sign a form notifying the government, which then sets up the coverage through the group’s existing plan at no additional cost to the organization.

Contraception violates Catholic teaching, and the Little Sisters of the Poor and other groups argue that signing that form is itself a violation of their religious liberty — and of the 1993 Religious Freedom Restoration Act, which prohibits the government from “substantially burdening” the free exercise of religion guaranteed by the First Amendment. 

Matthew J. Franck, director of Witherspoon Institute’s William E. and Carol G. Simon Center on Religion and the Constitution, agreed to answer a few of the most common questions about the fight over the proposed work-around, and why the sisters and others reject it.


Q: I’d like to understand how filling out a form constitutes ‘material cooperation with evil.’ So let’s start with the first question I have, which is what’s the big deal with signing a form so you won’t have to violate a teaching of your faith?  

A: In the case at hand, signing the form is  the violation of the faith.  At a minimum it is material cooperation with evil, because the signature on the form or letter is the “but for” cause of the evil being done — that is, but for the Little Sisters signing the form the government demands, the transaction of their insurers providing the contraception the government demands would not occur.  Some theologians in an amicus brief to the Court argue that it could even reasonably be construed as formal cooperation — that is, sharing in the wrongful intention of bringing about the evil.  (This argument rests on a distinction between intention and motive, and supposes, I believe soundly, that one’s intentional actions can be coerced contrary to one’s wishes.)  

For this reason the Little Sisters and other petitioners regard the “accommodation” as simply an attempt to disguise the very same violation of their faith that Hobby Lobby successfully argued was imposed on them in their successful case two years ago.  

Q: But with or without the signature, the same number of people will presumably get birth control, so how is the signature augmenting evil?  

A: Will they?  Possibly, but here are the alternatives:  

Pre-HHS mandate: Women bought their own contraception out of pocket.  

HHS mandate: Their employer is compelled to provide or facilitate it.  

Post-HHS mandate (I am optimistic): Women obtain coverage on the exchanges or government provides it to them.  

Only in the second scenario, the one the Obama administration has engineered for no compelling reason, is someone’s religious conscience imposed upon.  

Q: But if the sisters and others opting out neither increases nor decreases the actual number of couples using birth control, the evil isn’t the effect but the process?  

A: None of the objecting employers is trying to intervene in the choice of others to use contraception (or abortion-causing drugs).  I’m not aware that any of the employers would take drastic measures like firing someone for this, even if they could (which is questionable).  The evil others do is their business.  The evil you compel me to participate in is my business.  That’s the crux of the religious freedom issue here.  

Q: So for the Little Sisters, the only workable work-around is for the government to distribute birth control directly? How would that work?  

A: The government itself said in its brief to the Supreme Court that people who work for fully exempted churches, or the millions of employees of companies with unaffected “grandfathered” plans, can “obtain coverage through a family member’s employer, through an individual insurance policy purchased on an [Affordable Care Act] Exchange or directly from an insurer, or through Medicaid or another program.” The Obama administration says this is perfectly acceptable for these women.  

As the Little Sisters’ reply brief said, that’s exactly what the employees here could do too, so why is that alternative not good enough for them?Why work so hard to force people to violate their consciences when this is so easy?  

Q:  I think what both believers and secularists most want to know is where the limits are: Believers worry about whether freedom to practice now only applies inside the church or mosque or synagogue, while secularists see believers as imposing the tenets of their faith on others, and angling to ignore any laws that just don’t suit them.  

A: The RFRA standards protect the free exercise of religion, which goes well beyond what happens in a house of worship. But they don’t entitle people to “ignore any laws that just don’t suit them.”  They require that if people 1) sincerely object on religious grounds to 2) a substantial burden on their religious exercise, then 3) the government must demonstrate a compelling interest that 4) can’t be achieved by less restrictive means. Sometimes the government will win, sometimes it will lose.  It should lose here.  

As for “imposing the tenets of their faith on others,” that’s not remotely happening here … The employers not trying at all to prevent anyone from using contraception.  So if the Little Sisters win, it certainly won’t be because the Court believes that they have a right to impose their faith on others.  

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