In an environment where optics matter, you’d be hard-pressed to find a better visual than a half-dozen sullen government attorneys staring down a group of smiling, habit-clad nuns in court.
The sympathetic imagery aside, it’s anyone’s guess how the now-eight justices of the court will rule on a case that has become the new barometer for how the government perceives America’s first freedom: religious liberty.
At issue is whether the Health and Human Services Department can force the Little Sisters and their co-petitioners (including the Catholic University of America and the Catholic Archdiocese of Washington), to provide a wide array of government-mandated contraceptive and abortifacient coverage (including the morning-after pill and surgical sterilization) as part of their health insurance plans, even if doing so burdens their free exercise of religion.
The Affordable Care Act, the president’s signature legislative achievement, requires all employers who offer insurance to provide plans with free coverage of birth control for women.
Those that don’t are subject to stiff financial penalties.
Houses of worship, like churches, enjoy an automatic exemption from the mandate, but religious nonprofits like schools, hospitals and even universities do not.
After months of what appeared to be half-hearted negotiation by the administration, HHS offered such institutions — many of which eagerly supported the healthcare law — what it deemed to be an accommodation.
If groups like the Little Sisters, an order of Catholic nuns who run homes for the elderly and indigent, did not want to provide the required coverage to their employees, they could simply notify the government of their objection and ask it to instead require their insurance provider to “independently” provide the contraceptive coverage.
The insurer would then be required to fund the uncovered expenses, although the regulation states that the money could not come directly from premiums.
To government bureaucrats, this probably seemed reasonable, especially since many were blinded by the singular desire to increase access to birth control, whatever the cost.
To religious orders and institutions whose members take seriously their deeply held beliefs, to the women of the Little Sisters whose religious identity is as immutable as their gender, the accommodation was anything but reasonable.
The so-called compromise still forced devoutly religious institutions like the Little Sisters to be complicit in providing contraception to their employees.
Instead of finding an alternative, it essentially moved the employers further away from what they deemed a sinful act, but still required them to play a role in allowing the act to unfold in violation of the employers’ conscience.
The Catholic Church has long taught the immorality of abortion and contraception.
To some observers, such orthodoxy is arcane. Still, those teachings are indivisible from the faith and inviolable to its most orthodox followers, which include religious institutions beyond just churches.
As such, they demand protection under the Constitution.
But to the government, such beliefs are not a compelling reason to allow an exemption, especially when the “right” to “preventative healthcare services” is at risk.
Supporters of the government’s position have tried to paint the case as being about equal access to free birth control, but in reality the crux of the issue is about another freedom, one far more foundational.
As Reason writer Stephanie Slade summarized the point, the government is claiming that its compelling interest is making sure women have access to free contraception and that the provision of such services is entirely “seamless,” meaning women should not have to do any additional work to get it.
But the government’s only compelling interest here should be in protecting the religious freedom of its citizens. There are other ways the government can provide coverage without making religious objectors complicit.
Let’s hope the high court puts the Constitution before contraception.