On Thursday, July 23, the Little Sisters of the Poor, women religious who dedicate their lives to Jesus Christ and the service of the elderly poor, went to the Supreme Court of the United States for the second time for religious-liberty protection. Last week, the Tenth Circuit ruled against them, insisting that they comply with the coercive abortion-drug, contraception, and female-sterilization mandate that the Obama administration continues to stand by. Mark L. Rienzi is the Becket Fund for Religious Liberty lawyer who is representing the Sisters (meet Sister Constance here), and a professor at the Catholic University of America’s (my alma mater) Columbus School of Law. He talks about the case. – KJL
Kathryn Jean Lopez: Why did the Little Sisters of the Poor file a brief with the Supreme Court on Thursday?
Mark L. Rienzi: The Little Sisters are asking the Supreme Court to protect them from the government’s contraception mandate. The government insists that the Little Sisters should let the government and others use their health-care plan to provide contraceptives and abortion-inducing drugs. And, not surprisingly, the Little Sisters object to that use of their plans.
This is actually the second time the Sisters have needed to ask the Supreme Court for protection — Justice Sotomayor had to order the government not to fine the Little Sisters on New Year’s Eve in 2013 over the same mandate.
Thursday’s brief is a petition for certiorari — it is a request to the Supreme Court to hear the Little Sisters’ case on the merits before the government can impose millions of dollars of fines.
Lopez: Why is this case coming back to the Supreme Court now — didn’t the Supreme Court’s Hobby Lobby case already resolve this?
Rienzi: Last year’s Hobby Lobby case should have resolved this. But lower courts have been ruling against religious ministries like the Little Sisters of the Poor. The courts have been saying that it is fine for the government to force these ministries to comply with the mandate because the mandate works differently for religious non-profits. The judges are saying that the religious groups should no longer feel complicit once they sign documents to let other people use their health-care plans to distribute these products for them, and therefore the government can force them to violate their religion.
Last week, the Tenth Circuit Court of Appeals ruled against the Little Sisters on these grounds. It recognized that the Little Sisters had a religious objection to helping people use their plans in this way. But the judges ultimately disagreed about whether the Little Sisters would be morally complicit in the distribution of abortion-inducing drugs — they thought that there was no complicity problem, because someone else would be taking over the plans to distribute the drugs.
There are a lot of problems with that analysis, but here is the biggest: In a free society, the government doesn’t get to tell you what your religion allows and what it forbids. The Little Sisters say that their religion prohibits the use of contraceptives and that therefore they consider signing over their plan to help distribute contraceptives to others to be complicity in a moral evil. It is for the nuns, not the judges, to decide whether that act is permitted or prohibited.
Lopez: The government says it is just trying to improve access to contraceptives — isn’t the government allowed to pursue that goal?
Rienzi: Of course the government can pursue the goal of distributing contraceptives if it wants to — our government already spends hundreds of millions of dollars doing that every year through Title X grantees like Planned Parenthood. But it is an embarrassment for the most powerful government in the world to pretend that it can’t pursue that goal without the help of the Little Sisters of the Poor. Untold millions of people have managed to get contraceptives without involving nuns — it isn’t that hard.
Here’s an easy solution: The government has now created a network of health-care exchanges and (after last month’s decision in King v. Burwell) can decide to subsidize anyone they want. Those exchanges — which the government praises all the time — are a perfectly adequate way to give out plans that include contraceptives to anyone who wants one. There is no reason the government can’t use its own exchanges to achieve its own goals, rather than trying to take over the Sisters’ health plan.
Lopez: Why can’t the Little Sisters just direct people to the insurance for their contraception and be done with this? It must be such a distraction to their work?
Rienzi: The Little Sisters cannot help the government distribute contraceptives and abortion-inducing drugs. They have a health plan and they do not want to give it over to the government or anyone else to help distribute these products. If they sign the forms the government wants them to sign, they will be authorizing and directing other people to give out these drugs for them, and they will be allowing their plan information and infrastructure to be used in the process.
The Little Sisters have a health plan and they do not want to give it over to the government or anyone else to help distribute these products.
There are other issues waiting in the wings. In California the state insurance regulator has ordered employers, including religious colleges, to cover surgical abortions. Washington State lawmakers proposed a similar surgical-abortion mandate. It is not far-fetched to predict that states where assisted suicide is legalized could impose a mandate for life-ending procedures. So the Sisters are resisting the use of their plans to distribute contraceptives, but their stand applies equally to the surgical-abortion and assisted-suicide and euthanasia mandates waiting in the wings.
Lopez: Is it a distraction?
Rienzi: The Little Sisters are extraordinarily committed to their loving work of caring for the elderly poor until their natural death. They view this case as part of their witness to the culture of life and to the dignity of all people, at every stage of life, born and unborn. They did not seek this case at all. They filed comments with the government asking for an exemption. They waited as long as possible to see if the government would decide to pursue its goals without them. But ultimately the government just left them with no choice, because it was demanding that they either violate their religion or pay large fines. I’m sure they will be relieved when we get to the end of all this and they can just focus on caring for the elderly without worrying about getting fined by their government.
Lopez: The Tenth Circuit compared signing over the health-care plan to registering to vote — what is wrong with that analogy?
Rienzi: What is wrong is that we do not judge religious exercises by whether or not they are physically hard or time-consuming to perform. It is easy to flip a light switch, but for some Jewish believers that is forbidden on the Sabbath. It is easy to cut hair or shave a beard, but for some Native Americans, Muslims, and Sikhs those acts are forbidden. It is easy to sign a death warrant or write a prescription for a lethal injection, but many religious opponents of capital punishment can’t do those things.
Lopez: Hasn’t the government argued, though, that even if the Sisters sign the forms, the drugs may not be provided?
Rienzi: They have, and that is what makes this case particularly strange. For years now, the centerpiece of the government’s argument has been that its forms don’t really matter, and that no one will be able to force the plan to provide contraceptives even if the Sisters sign. If the government actually believes that claim, then the government’s actions here are quite extreme: Why force people to violate their religion if the government thinks no benefit will come of it?
The government explains that it wants to be inside the employer’s “insurance coverage network” and it wants to use the plan’s “claims administration infrastructure” in order to deliver the drugs.
But the government’s claims are hard to square with its actions. It was asked to exempt people like the Little Sisters but refused. If their participation does not help distribute contraceptives, why wouldn’t the government just exempt them? The government has said that its forms and documents don’t do anything — but if that’s true, then why require the Sisters to sign them?
The only purpose of those documents is to help advance the government’s goal of using the Little Sisters’ plans to distribute contraceptives. In its most recent version of the rule, the government explains that it wants to be inside the employer’s “insurance coverage network” and it wants to use the plan’s “claims administration infrastructure” in order to deliver the drugs.
The government argues that at least “at this time” they cannot actually force other people to use the Little Sisters’ plan infrastructure to provide these drugs. But it has been quite clear that if it can get their signatures on the forms, it will use that authorization to go make generous offers to secular companies to have them use the Sisters’ plan to provide the drugs. And the Little Sisters just can’t give over their plan for that purpose.
So in a nutshell, either the forms don’t help distribute contraceptives (in which case the government’s insistence on them is aggressive and really makes no sense at all) or they do help distribute contraceptives (in which case it should be obvious why the Little Sisters cannot sign them).
Lopez: Is challenging the Obama administration’s abortion-drug, contraception, and sterilization mandate becoming a losing issue? This wasn’t the first loss this summer.
Rienzi: This is not a losing issue at all. Every single time this issue has been to the Supreme Court — including three times on the non-profit mandate — the Court has rejected the government’s arguments. Some lower courts have mistakenly thought they could second-guess a religious believer’s understanding of what her own faith requires. But decades of Supreme Court cases and several recent decisions make clear that approach is forbidden. And the results from the Supreme Court — including Hobby Lobby and the last time the Little Sisters needed relief — have all been on the side of religious liberty.
Lopez: What has surprised you during the course of their case? What hasn’t?
Rienzi: I am most surprised by the government’s aggressiveness, particularly after they won their case in King v. Burwell making clear that Congress can choose to subsidize whomever it wants on exchanges across the country. Ten years ago, we all lived in a world in which insurance came from your employer. But today the government has set up a separate system — working in all 50 states — that allows people to go get policies directly without going through their employer. That should be the end of this issue: The government does not need to force the Little Sisters’ plan to include contraceptives, because anyone who wants a plan that the Sisters can’t offer can just go get it on the government’s exchanges.
Lopez: What is the answer to the question “What is the state of religious freedom in the United States today?” Is the answer unfolding?
Rienzi: I think the state of religious freedom remains strong, but this is certainly a time of challenge. The question people need to ask themselves is whether they are willing to live in a diverse place, with neighbors and co-workers of different races, religions, backgrounds, sexual orientations, etc. In a liberal democracy full of people from all different backgrounds, it ought to be fairly easy to say that it is okay for your neighbor to think or look or act or worship differently from the way you do. And in our big and powerful democracy, most of the time our government ought to be able to work around those differences without punishing people for having unpopular beliefs.
So if a particular corrections employee cannot help with an execution, the right answer is not to fire her but to work around her. If a doctor can perform all kinds of wonderful medical procedures but not abortions, the right answer is to welcome her contribution to keeping people healthy rather than pushing her out of the profession because of her beliefs. Too often there is a temptation to think that the government should punish people who have beliefs or practices that we don’t agree with — and that is a temptation that a decent society should resist.