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Little Sisters of the Poor Case: The Administration’s Position Goes from the Absurd to the Surreal



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The Obama administration told the Supreme Court that nuns running an elder-care facility should have to provide “free” abortion drugs through their health-insurance plan. Witness your tax dollars at work.

There is hope, though, that your hard-earned pay won’t be wasted on absurdities like this much longer. Religious freedom is so embedded in American law that Obamacare has suffered court orders against its mandate in 53 of 60 rulings so far.

Yet despite having many opportunities to promote abortion without involving people of faith, the Obama administration refuses to cut its losses. Instead it has doubled down ferociously – insisting on coercing even nuns to participate in its anti-life, anti-religious agenda.

In the first wave of the abortion-pill-mandate debate, President Obama promised Christian leaders that the rule would exempt religious groups. But the abortion extremists had their way and the White House “evolved” on the issue. The 2012 election year “solution” was to tell religious groups they would, in the words of Cardinal Dolan, get an extra year delay in order to “figure out how to violate [their] consciences.”

Then the Obama administration walked into court against religious families who earn a living in business. It insisted that those job-creating families don’t possess religious freedom. The government has deemed the world of business and healthcare “secular,” where religion is not allowed.

The administration had tried a similar maneuver the previous year at the Supreme Court, where it lost 9-0 arguing that education is inherently secular and that religious schools don’t have special First Amendment protection. But even a colossal failure like that doesn’t dissuade true believers.

So despite losing 35 of 41 cases so far against job-creating religious families, the Obama administration went on to declare that religious ministries aren’t religious enough to be considered “religious employers.” Instead the administration concocted a phony “accommodation.” This alleged compromise forced groups that provide insurance to their employees to transform that insurance into a free coupon for abortion pills and contraception. The government told the religious groups this accounting gimmick should satisfy their consciences, because government gets to decide what conscience means.

This led the Little Sisters of the Poor, after long reluctance, to sue the federal government to avoid being co-opted into the Obama administration’s abortion and contraception agenda. The administration’s response to their lawsuit has been its haughtiest move yet.

It declared in court that it didn’t understand its own “accommodation,” and that suddenly it had discovered that the accommodation might not apply in the same way to the Little Sisters.

This brings us to the government’s brief. The government actually misrepresents the facts before the Supreme Court. It asserts that all the Little Sisters have to do is file a form saying “they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services.”

That’s untrue. The government deliberately added more language to the Little Sisters’ form. Because their plan is “self-insured,” in addition to stating their religious objection, the government requires their form to also specifically tell their insurance administrator that he has “obligations” to provide the abortifacient and contraceptive coverage himself.

The government added this language on purpose because it wanted to force self-insured entities to create a binding contractual duty for someone else to provide abortion pills – through the religious group’s own health plan – when the religious group doesn’t want to do that itself. Thus the government’s “compromise” for self-insured groups is akin to telling them: Don’t worry, you don’t have to assassinate that guy, you just have to contract a hit man to do it. 

At this point the administration’s position went from the absurd to the surreal. The government now says that the Little Sisters must still submit their form. The form still requires the Sisters to explicitly tell someone else they have “obligations” to provide abortion pills and contraception. But the government says it overlooked the fact that the Little Sisters’ plan fits into a legal loophole where, if that third party abortion-pill guy doesn’t follow his “obligations,” there’s no penalty on him.

In other words, the Obama administration refuses to grant an injunction that would protect the Sisters from hiring someone else to do offensive things, and its refusal is based on the theory that the government’s coerced speech probably won’t work anyway. The government admits that its offensive coerced speech might not actually achieve the government’s goals, but the Little Sisters must speak it anyway.

The Obama administration has fought all the way to the Supreme Court to force the Little Sisters to do something that the government insists is pointless. If it’s pointless, the federal government shouldn’t be forcing people to do it against their will in the first place. But that lesson applies to all of Obamacare, and it seems that the administration just can’t resist the temptation to coerce.

— Matt Bowman serves as senior legal counsel with Alliance Defending Freedom. Bowman represents numerous clients in cases challenging the Obama Care abortion pill mandate, including Conestoga Wood Specialties, one of the mandate cases to be heard before the United States Supreme Court this spring.



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