The Little Sisters of the Poor, a group of Catholic nuns who take care of the dying, particularly those who are poor and dying, will get their day at the Supreme Court.
Many legal commentators say that if these nuns prevail, and are allowed to hire an administrative assistant without authorizing the government to provide this employee elective tubal ligations without a copay, the United States will be thrust into the darkness of theocracy. Some speculate that the Little Sisters must have been duped by big-league, big-money theocrats.
This is bogus. The Little Sisters' case is simple, straightforward, and based on moral premises that are widely shared outside of their faith and recognized in law. The Little Sisters should win at the Supreme Court.
Like many religious groups, the Little Sisters found that the Affordable Care Act's mandate to provide copay-free contraceptive services as part of the compensation they give employees violated their religious conscience. The Little Sisters argue that ObamaCare makes them unable to hire workers without becoming complicit in acts that are intrinsically sinful. Catholics believe fertility and virility are signs of health, a gift from God. Assisting someone in the artificial suppression of these gifts is to assist her in self harm, even if the person doesn't see it that way. There's no clearer form of being an accessory to an act than to contract for it. The nuns cannot in good conscience do so.
Recognizing this, the Obama administration tried to create a religious non-profit exemption scheme. Actual churches and other houses of worship are thus exempt altogether from ObamaCare's contraception mandate. Not so religious organizations like the Sisters. And so, in a new scheme, a religious non-profit certifies that it will not provide this coverage, and the government steps in to do so itself. The Little Sisters argue that this accommodation is no better. And that's what the Supreme Court will rule on.
At this point, many readers are shouting questions at the screen. If there was no mandate, in all likelihood employees would buy their own contraceptive services or other sinful items with their wages. If the Sisters are so opposed to this stuff, how can they hire anyone in good conscience when the employee might spend her wages on sin? Simple: The wages paid by the Little Sisters are the just reward of labor given to the employee. What the employee does with her justly earned money is her own moral responsibility.
We intuitively understand the nature of being an accessory. If a man loans his brother a car under the presumption that it will be used to get to work, he is not indicted if his brother afterward uses it in the commission of a crime. If a man loans his brother a car with an explicit understanding that it could be used to bring some kids to basketball practice, do some chores, and then as a getaway car for a bank robbery, he can be hauled before the court as aiding and abetting the crime.
Still, you may say, how can the opt-out form — in which the government steps in to provide contraceptive services that the Little Sisters won't pay for — be a burden on the nuns? Very easy. The Little Sisters' argument is that the form as it has been devised doesn't just certify that the Little Sisters won't provide this kind of medical coverage as part of their compensation, but that it authorizes and explicitly triggers the government to do so. The nuns are still an accessory to sin.
The first page of the form has language about certifying the existence of a religious objection to providing contraception coverage. (Even this language is odd for a Catholic to sign since many believe theirs is a moral objection based in reason, not in revealed religion). Putting that aside, the second page of the form reads:
The organization or its plan must provide a copy of this certification to the plan's health insurance issuer (for insured health plans) or a third party administrator (for self-insured health plans) in order for the plan to be accommodated with respect to the contraceptive coverage requirement.
It further specifies, "This certification is an instrument under which the plan is operated." In other words, the form is not just a notice that the Little Sisters object to providing contraception coverage, it is a document that triggers and authorizes the government to do so in their place. It does not help the Little Sisters out of their moral dilemma. Just as it wouldn't save the bank robber's brother if he told a court, "I object to robbery of course. But my sister doesn't, so knowing that my brother needed my car for a bank robbery, I told my sister to give my brother the keys." A moral defense like this is entirely self-refuting. The opt-out form says, in so many words, "I have grave objections to these intrinsically evil acts, we therefore authorize someone else to do them in our place."
The Little Sisters have other moral choices they can make when faced with this legal instrument. They can simply refuse to sign it and suffer the crippling fines. Being unjustly punished by the state is not a sin. Or they could cease operating in the United States. Neither is a good solution. They ought to have the right to carry out their mission without the burden of fines, or a burden of conscience.
Luckily for the Sisters, in the majority opinion of Burwell v. Hobby Lobby, the Supreme Court ruled that under the Religious Freedom Restoration Act of 1993, the courts should not make any judgment on whether the religious convictions at issue are truly reasonable. Instead, they judge whether the government's means for achieving its ends are truly the least restrictive to the religious conscience.
This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step. [Burwell v. Hobby Lobby]
Of course there are less restrictive means of making contraception available than recruiting a group of hospice nuns and their insurance company as the intermediary. The government could extend its complete exemption for churches to religiously affiliated non-profits. Or the government could waive its form, and design one in which insurers or plan managers simply inform the government which users are under plans without these services, allowing the government to provide them afterward.
The Little Sisters' objection may seem like a small thing to an outsider, but in cases of religious burdens, it almost always does. Roman authorities wanted religious dissenters to merely throw smoke at idols of Caesar; they didn't ask for true belief in him. Henry VIII wrote a niggling, lawyerly form to swear loyalty to him above the pope. In America, we try to avoid putting people into these situations. The court should swiftly rescue the The Little Sisters. It will not send us into a theocratic nightmare. It won't even return us to the legal framework of 2011.