Little Sisters, Religious Liberty and the Battle of the Briefs

By Dustin Siggins Published on April 16, 2016

The Little Sisters of the Poor and their allies have entered a new stage in their battle against the Obama administration’s requirement that they participate in insuring contraceptives, abortifacients and sterilization.

After the Supreme Court heard oral arguments last month, it ordered explanations on “whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.” The court is questioning whether is a way to take the protesting organizations out of the chain between the insurance company providing contraception and the employees receiving it. 

The court also said the separate contraceptive coverage should not cost anything extra to the employees or the employer. The Affordable Health Care Act requires employers’ healthcare plans to offer it free to employees. Some employers are exempt from the mandate, including churches and plans purchased before March 23, 2010. 

Both the government and the 37 non-profits suing the administration have now filed briefs responding to the Court’s order.

The Plaintiffs’ Argument

According to the brief filed by the plaintiffs, “the answer to that question is clear and simple: Yes.”

“There are many ways in which the employees of a petitioner with an insured plan could receive cost-free contraceptive coverage through the same insurance company that would not require further involvement by the petitioner,” says the brief, which was filed on Tuesday, “including the way described in the Court’s order. And each one of those ways is a less restrictive alternative that dooms the government’s ongoing effort to use the threat of massive penalties to compel petitioners to forsake their sincerely held religious beliefs.”

“Moreover,” say the plaintiffs, “so long as the coverage provided through these alternatives is truly independent of petitioners and their plans … petitioners’ RFRA objections would be fully addressed.”

Currently, the groups must give permission for an insurance company to provide the required coverage to their employees. Their brief, however, indicated no legal or religious liberty objections to insurance companies independently contacting employees to offer coverage — even though many of the groups, such as Little Sisters and Priests for Life, are Catholic based and oppose all of the required coverage on moral grounds.

The Government’s Response

However, the Obama administration’s brief argues that the groups are already seeing their objections appropriately respected. “For employers with insured plans, the Court’s order describes an arrangement very similar to the existing accommodation. The accommodation already relieves petitioners of any obligation to provide contraceptive coverage and instead requires insurers to provide coverage separately.”

“The only difference is the way the accommodation is invoked,” continues the brief. “Currently, an employer that chooses to opt out by notifying its insurer (rather than HHS) must use a written form certifying its religious objections and eligibility for the accommodation.”

It is the fact that they have to opt out that the groups are opposed to, however. Last month, Thomas Aquinas College General Counsel John Masteller told LifeSiteNews last month that even opting out would make his institution a participant in the process because of its self-insurance policies.

“We hire an insurance company to be a claims administrator and to get a network of doctors,” said Masteller. “If [objecting] was all we had to do, then none of us have any problem. But then they say, ‘send us the name of your insurance company or your third-party administrator who runs your self-insurance program.’ And the regulations state, as to self-insurance programs, is your notice of that designates your third-party administrator to carry out these objective coverages.”

“When we send in the notice … we have designated our third-party administrator to carry out the objectionable coverage.”

Priests for Life attorney Michael Muise likewise said the government “conceded” his client’s involvement in the coverage “is necessary for them to accomplish their objective.”

“Number one, they have to have the insurance plan to begin with. The contraceptive services are provided to Priests for Life’s plan beneficiaries only so long as they’re on Priests for Life’s health care plan. They also need the authorization of Priests for Life to provide the contraceptive coverage.”

“This is clearly a case of material cooperation with evil.”

ACLU vs. Religious Groups

In a statement reacting to the briefs, ACLU senior staff attorney Brigitte Amiri accused the plaintiffs of setting up a scenario that would “leave tens of thousands of employees and students without contraception coverage.”

“What the employers propose is not a least restrictive alternative, but a less available contraception plan,” said Amiri, whose group backs the mandate.

Amiri later told The Stream that while contraception is widely available and widely used by American women, “until the ACA, were unable to obtain the most effective methods because of cost barriers. Studies have shown that when cost barriers are removed, women choose the most effective methods, which are often the most costly, and then the unintended pregnancy rate plummets.”

Approximately one-third of Americans, including employees who work for Exxon, Pepsi and other major corporations, are exempt from the mandate. Amiri told The Stream that “although grandfathered plans have not yet come into compliance with the ACA, most will gradually. And most plans cover contraception even if not required by the ACA.”

Spokespersons for several of the groups fighting the mandate disputed Amiri’s claims, however.

“The ACLU, in stating that this is going to result in ‘less available contraception,’ makes an assertion that the government itself could not back up,” said Priests for Life National Director Father Frank Pavone. “Various briefs in this case made the point that the government provides no evidence of this.”

According to Pavone, “whether the ACLU likes or dislikes the consequences of our free exercise of religion is quite beside the point; the government is bound, by federal law and the Constitution, to protect it. … It is only the believer — and not the court or the government— who is qualified to draw that line, as the Supreme Court has admitted in Hobby Lobby and other cases.”

Alliance Defending Freedom senior counsel Greg Baylor said Amiri’s statements did not line up with the realities of either the mandate or contraception in America.

“The ACA permits employers to maintain grandfathered plans indefinitely,” Baylor stated in an e-mail. “After an initial decrease in the number of grandfathered plans, the number has remained steady over the last few years. And the government itself expects grandfathered plans to remain in existence for a long time.”

“There is no rational reason to force religious employers to provide abortifacients and contraceptives while exempting grandfathered plans — other than a desire to maintain the pretense of keeping a dubious political promise that ‘if you like your plan, you can keep your plan,'” he continued.

Baylor also disputed Amiri’s claims about unintended pregnancies and the cost of contraception. “On average, states that have their own contraceptive mandates actually have higher rates of unintended pregnancy. In a majority of states for which data is available, unintended pregnancy rates went up following the adoption of a contraceptive mandate,” he said.

Becket Fund for Religious Liberty Senior Counsel Lori Windham accused the Obama administration of “being condescending to women” by “refusing to take yes for an answer.”

“The Little Sisters of the Poor proposed several ideas that are separate from their plan but as simple as calling to activate a credit card,” she said. “Does the government think women can’t be trusted to do something as complex as call a phone number or fill out a postcard?”

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