Little Sisters, Little Pills: It’s All About Power

By Cathy Ruse Published on March 23, 2016

Obamacare is before the Supreme Court again today. This time, eight justices will hear oral arguments over whether the Little Sisters of the Poor, Priests for Life, and other religious nonprofits should be forced to provide free contraception and abortion pill coverage to their employees if they don’t have to shoulder its cost.

In Zubik v. Burwell, the Court will examine the latest iteration of this government shake-down. Under it, the Little Sisters would have to certify by signature that they have a religious objection. Does that signature keep the anti-Catholic items out of the Little Sisters’ insurance plan? Why, no. It keeps them in. It tells the insurance carrier to provide every Little Sister employee with free contraception and abortion pills for as long as they are in the employ of the Little Sisters.

Will the Little Sisters defy this mandate? Is the pope Catholic?

Important facts and questions that will not be a part of the media coverage of the case:

  • If they follow their Catholic beliefs, the Little Sisters will have to pay the federal government a fine of $100 per employee per day. This fine bears no relation to the cost of the insurance coverage at issue. It is utterly punitive—intended to make the nuns bend the knee at the altar of a new god.
  • The Supreme Court has upheld a right to contraception and abortion, but never the right to get them for free. This case is not about rights, it is about power.
  • The administration gave an outright exemption to churches. It could exempt religious nonprofit schools and soup kitchens and the Little Sisters, too, but decided to keep them on the hook. Isn’t the church exemption a tacit admission that the accounting gimmick is not really enough to protect objections of conscience?
  • Is conscripting Catholic priests and religious sisters really necessary? Of course not. If the Obama administration is deadset on giving out free contraception and abortion-drugs, it could provide them directly, through government-funded Title X clinics, or provide reimbursement for the items or the insurance coverage of them for people employed by priests or nuns.

The justices will be reviewing this Obama regulation in light of the Religious Freedom Restoration Act. Under this law, if you think your religious freedom is burdened by a federal law or regulation, you can go to court and argue that your belief is sincere and the burden on it substantial. The government, for its part, can argue that its law furthers a compelling goal, and that there is no way to accomplish that goal without burdening your religious freedom.

Those who favor Obamacare and its drug mandate suggest the “substantial burden” question is simple: no payment, no burden; sign here and your conscience is clear.

But it is much more complicated than that. The Catholic Church has thought long and hard about when someone can cooperate with someone who is doing something wrong. There is “formal” cooperation, when the person (or an institution) helps another do something wrong, and that is never allowed. There is “material” cooperation, when someone is involved involuntarily in another person doing something wrong. That might be allowed depending upon a set of very carefully worked out criteria, like whether the person is directly involved in the action or involved at a distance.

The Little Sisters of the Poor thought carefully about the requirement and decided that signing the statement would be formal cooperation, because it would lead directly to the provision of contraception. Are five justices really going to decide that the Little Sisters and 1,500 years of Catholic Church doctrine are wrong about this moral theology? And with what authority will they make this conclusion? And why can’t the government supply the contraception and avoid unnecessarily burdening the Little Sisters’ religious freedom?

Free contraception and abortion is a White House project and the White House should run it. This case is not about rights, it is about power. Leave the Little Sisters out of it.


Cathy Ruse is senior legal fellow at Family Research Council.

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