A key theme of the Obama administration’s 37-page response to the Little Sisters of the Poor’s request for an injunction against the HHS abortion-pill Mandate, boils down to this: It’s just a form. The case isn’t about liberty; it’s about paperwork.
Here’s their argument in a nutshell: The law merely requires the Little Sisters of the Poor to certify their religious objection to the third-party administrator of their self-insurance plan. Ordinarily, this certification would then require the third-party administrator to provide “free” abortifacients to the Little Sisters’ employees, but since the third-party administrator is exempt from this requirement (because they’re administering a “church plan”) and says it won’t provide the abortion pills, then this case is about nothing at all — nothing but a requirement that the Little Sisters fill out a piece of paper to get their government benefit.
Here’s the government’s brief:
Applicants cannot establish that it is indisputably clear that such a RFRA claim would succeed. Indeed, that reading of RFRA, if accepted, would seemingly invalidate any scheme in which an individual or entity with religious objections is required to complete a certification of entitlement to an opt-out in order to secure the opt-out. That cannot be correct.
But here’s the problem: The certification is not an “opt out,” it’s a document that actually empowers a third party to provide free abortion pills. In that way, it’s more like a voucher than an opt-out. Imagine if the government said to a religious employer, “We’re not going to require you to pay for abortions, but we will require you to provide employees with a document that entitles them to a free abortion at the Planned Parenthood clinic down the street.” Would anyone think for a moment that respected religious liberty? Yet that’s the essence of the government “accommodation” here.
The Little Sisters object to providing an abortion/contraception voucher — a voucher that could be redeemed for free abortifacients at the discretion of a third-party administrator.
So, no, this is not an argument about a form. After all, religious entities (including the Little Sisters of the Poor) fill out forms without objection all the time. It’s about power — whether the Obama administration can force a Catholic charity to empower a third-party to provide free medical services that indisputably and gravely violate the deeply-held religious principles of nuns who are doing good works for the “least of these.”