Nuns on the pill…
Posted March 25, 2016on:
Good morning Widdershins. Hope your Friday is off to a great start on the way to a fantastic weekend.
Wednesday occasioned the oral argument before the Supreme Court of Zubik v. Burwell – a rather antiseptic styling for an umbrella case hiding at least eight appeals in the ongoing “scary lady parts war”. With Brussels and the Trumpster fire being what they are, very little attention was given to what’s commonly known as the Little Sisters of the Poor case. I’m going to fix that in our little corner of the interwebz.
It is a somewhat complicated case. First, here is what you need for an understanding of the issues.
- This is a case about contraception and abortifacients if you are talking to opponents of Obamacare. These people are the “Petitioners.” The other side, “Respondents,” say it is a case about an Obamacare mandate providing “the most frequently taken drug for women ages 15-60 costing $30 or more a month for pills, and as much as $1,000 for buying and having an IUD inserted”.
- This is a religious liberty and Religious Freedom Restoration Act case. RFRA says the government must have a compelling reason for laws that substantially burden religious beliefs, and even then government must prove that the law is the least burdensome way of achieving its goal.
- Churches and their directly affiliated organizations are not affected by this case. They are specifically exempted and there is a separate work-around for them. This case affects nonprofits like religious schools, universities, and hospitals among others.
- Those nonprofits (the Petitioners) were given a workaround to accommodate their objections, but they say this accommodation still burdens their free exercise of religion.
- This case could be tied 4-4 since Scalia has gone on permanent sabbatical. If it is tied, the rulings in the various Courts of Appeals stand. In all those cases, save for one, the Petitioners lost – meaning the government work-around for approximately 1.6 million women continues. The Court could hold the case until the Senate decides to do its constitutional duty by convening confirmation hearings for a new Justice.
With that baseline, here’s how it works and what is being challenged. If you are an affiliated religious organization, like a hospital or school, the organization must fill-out a two page form or write a letter saying it doesn’t want contraceptive coverage for its female employees. Then the insurance company, from funds segregated from the funds of the underlying organization, will provide contraceptive coverage to the insured females. The insurance company must even communicate separately, in a different envelope, to the women and may not include correspondence along with normal correspondence.
This is a bridge too far for the opponents. The Petitioners say giving the notice, filling out the form or writing a letter, is putting these female employees on the road to contraceptive perdition. They also say the insurance companies would have to use the organization’s “infrastructure” meaning mailing list and thereby, it would make them complicit in providing the dreaded contraceptives.
For the Respondents, that is highly toxic bull excrement. The Respondents include many religious organizations who think the Petitioners have taken their activism beyond the point of absurdity. They also believe the Petitioners are sowing the seeds of political destruction for religious liberty. How so?
First, the Petitioners want the Court to adopt a finding that if a religious organization says something is a substantial burden on their exercise of religion, the courts must take their word for it. No questions. No evidence. End of discussion. Period. You can just imagine the number of extreme claims this would create.
Taken to its logical conclusion, this would completely end the contraceptive mandate because it would take about two nanoseconds for some enterprising activist to say, “Because of my religion, I can’t obey any law passed by any government allowing abortion.”
The Petitioners are asking for automatic and absolute deference as to what constitutes a substantial burden on their religious beliefs. Forget the courts. Forget the Congress. Forget state legislatures. Forget town councils. Religious claimants would be imbued with superpowers and not be subject to challenge. No one would be the boss of them.
The other argument advanced by the Petitioners is even more universal in its reach. They argue that since churches are exempt, all affiliated groups should be exempt – meaning all work-arounds would be halted. The ability to fulfill the contraceptive mandate of Obamacare would end.
The Petitioners counter with, “Just have the government supply contraceptives to all women.” To which the Respondents reply, “There is no legislation. There is no funding. There is no mechanism. It would be an unfunded mandate that would deny millions of women access to reproductive therapies.” And here’s a hint, the votes to abolish Obamacare now number almost 60 in the House of Representatives.
True to form, never underestimate the extent to which conservatives will overestimate their impact. There are thousands of specific religious exemptions in U.S. law. If legislators can’t enact religious exemptions without the exemptions becoming plenary “free spaces” as is suggested here by the Petitioners, religious exemptions will be curtailed. That is not a Prolix prognostication; it is what many mainstream religious groups fear.
So there you have it. Those are the arguments. Those are the positions. If anyone asks, about now would be a good time to have a ninth Justice on the Supreme Court.
Fredster has a weekend post slated for tomorrow, so until then take the discussion in any direction you might like.
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