Little Sisters of the Government
A revealing case about the Administration and religious conscience.
This week Justice
Later this term the Supreme Court will hear arguments related to the ObamaCarerequirement that all employer health plans must furnish contraception or else pay a tax penalty, but those cases involve corporations. The Little Sisters of the Poor run a nonprofit Colorado nursing home and hospice and therefore ought to be exempt under what the White House calls its "accommodation" for religiously affiliated institutions like parochial schools, hospitals and charities.
The problem is that to qualify under the "accommodation," religious organizations must sign a legal contract with their insurer certifying that the religious organizations refuse to subsidize contraceptive services. "This certification is an instrument under which the plan is operated," the contract notes, then informs the insurer of its "obligations" under the rules.
Those include a command that the insurer "shall provide" contraception to all enrollees, supposedly independently and for free. The political point of the accommodation was to pretend that the costs of contraception or abortifacients are nominally carried by a third-party corporation, but the insurers are really only the middle men. The Little Sisters thus argue that signing the certification contract directs others to provide birth control in their place and makes them complicit.
Boiled down, the Justice Department's legal response on Friday was: Shut up and sign the form. Solicitor General
His reason is the idiosyncratic insurance situation of the Little Sisters. They belong to a special type of insurance collective known as a church plan, also run by a Christian order. This plan will itself also qualify for the accommodation, in the same way as a Christian soup kitchen.
The Administration never envisioned that a religiously affiliated organization would contract with a religiously affiliated insurer, probably because there are so few church plans. They promised in a lower court to close the loophole in a future rule-making. But for now, the double accommodation means that in practice the church plan will not be required to cover and pay for birth control on behalf of the Little Sisters.
For that reason, the Administration should have simply let Justice Sotomayor's injunction stand. The Administration could have honored the Little Sisters' belief that they are harmed because empowering a third party to provide contraception is the sin. Then it could later close the loophole.
But the White House wants to make an ideological statement, and so Mr. Verrilli is in effect telling the nuns that they don't understand their own church teachings and that signing the contract doesn't really tread upon their religious beliefs.
The Little Sisters have another option, Mr. Verrilli continues. Employers "are not required to offer group health plans in the first place." They are afforded "a 'choice' between two legal options: provide a group health plan or risk payment of the tax." This is a baleful echo of Chief Justice
Perhaps such coercion is why Justice Sotomayor, who fields petitions from the Colorado federal court system, issued her writ. Injunctions from the High Court are rare, all the more because both the district court and the Tenth Circuit Court of Appeals denied emergency relief. Justice Sotomayor will now decide whether to extend or vacate her temporary order, or to bring the case to the full Court. A ruling could also apply to the dozens of religious plaintiffs that don't use church plans.
This case is simply a raw assertion of state power directing the religious to follow orders. Thus ObamaCare forces women who have taken a vow of chastity and minister for the dying to implicate themselves in what they consider to be grave moral wrongs.
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