The Supreme Court Calls Obama’s Bluff

by Scott Gaylord

The Supreme Court’s ruling Friday for the Little Sisters of the Poor is significant, not only because it is yet another victory for religious freedom against Obamacare’s abortion-pill mandate, but because the Court fully exempted the Sisters from the mandate while its case continues in the Tenth Circuit.

Since the initial draft of the mandate, the government has sought to make most religious non-profit groups help provide health coverage for items that violate their beliefs. Yet it fashioned rules that allowed the government to publicly deny it was engaging in exactly that kind of coercion.

Specifically, the mandate’s rules forced the Little Sisters of the Poor and other religious ministries not only to express their religious objections, but to do so through the government’s own “certification form.” The problem is that this form triggers the same coverage that religious groups objected to helping provide.

In particular, the government’s form forces self-insured groups like the Little Sisters and Family Talk to explicitly tell their health-plan administrators that the plans are “oblig[ed]” to include the objectionable coverage. The rules then gagged religious groups from trying to “influence” the plan administrator to exclude such coverage, making the Sisters complicit (in their view) in providing contraceptive coverage.

Not surprisingly, the government denied this, and most media covering the case followed suit. They insisted that the Little Sisters did not have to do anything except express their religious objections. The government hoped courts would ignore the fact that religious groups had to use the government’s special form and that self-insured groups had to order someone else to provide the coverage without being able to express their objections. Although the government declared the Sisters would be “exempt,” the rules make it clear that the government did not classify them as an exempt religious employer.

This is what makes the Supreme Court’s order in the Sisters’ case so important. The Court declared that “If the [Sisters] inform the [government] in writing that they . . . have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations. . . . To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the Government and need not send copies to third-party administrators.”

The Court essentially declared that the Sisters have to do nothing more than express their religious objection. Nothing more. No government form, no ordering the plan administrator, no imposing any “obligations” on the plan. And when the Sisters engage in this mere expression of beliefs, they will be truly and fully exempt.

Now what can the government and its defenders say? Although the Court said “this order should not be construed as an expression of the Court’s views on the merits,” it is hard to view this as anything other than a loss for the government. The government cannot complain that the Court let the Sisters off the hook. That would admit that the government was misrepresenting the situation all along because the Sisters are still expressing their religious objection. Given the Court’s order, though, this statement is now sufficient to exempt the Sisters from the mandate, which contradicts the government’s own regulations. The order gives religious groups the exemption that the government has refused to give them for two and a half years. If the government views that as a “win,” it should settle all the non-profit lawsuits today.

The government created this problem for itself when it refused to exempt religious objections across the board. Instead, the president placed a higher value on appeasing special interest groups, such as Planned Parenthood, than on protecting religious freedom secured under the Religious Freedom Restoration Act and the Free Exercise Clause. Thankfully, the Court did not.

— Scott Gaylord is the Jennings Professor and Emerging Scholar at Elon University School of Law in Greensboro, N.C., where he teaches constitutional law. He is the author of an amicus brief supporting Conestoga Wood Specialties and Hobby Lobby in the cases being heard March 25 at the U.S. Supreme Court.