How a group of nuns inadvertently revealed conservative hypocrisy on the burden of government
Do you feel overly burdened by your government? Unless you're a libertarian who's particularly sensitive to that sort of thing, the answer may depend on what day it is — whether you just paid your taxes, say, or you're fighting with your town over the helicopter pad you want to install on your roof. But we all put up with government burdens every day, because that's a bargain we make for living in something other than a state of anarchy.
The government tells me that I have to stop at red lights, which makes my journey slower than I might like it to be — but the government also built the road that I'm driving on, which makes my journey a great deal quicker than it would be if they hadn't. If you want to know how wonderful life is without a government burdening your daily activities, you can ask the people of Somalia.
Of course, the questions we grapple with aren't about whether government will burden us at all, but where the limits of that burden are, which is the topic of some interesting cases working their way up to the Supreme Court.
With all the attention paid to the King v. Burwell case, you may not realize that there are still lawsuits pending against provisions of the Affordable Care Act. This week, the Little Sisters of the Poor, an organization of Catholic nuns, lost before a federal appeals court in their suit claiming that regulations in the ACA covering the inclusion of contraception in insurance plans overly burdened their religious freedom. Even though conservatives won the Hobby Lobby case that allows private companies to express religious beliefs and opt out, these nuns want to take things a step further.
You may be saying, "Well, it seems reasonable that an organization of nuns wouldn't want to provide contraception coverage." But that's not actually what this case is about.
In response to the controversy over the ACA's mandate that insurance plans provide a menu of preventive care (including contraception), the Obama administration worked out a compromise for religious organizations like the Little Sisters, as well as private companies like Hobby Lobby. The organization simply has to inform the government that they don't want to provide contraception coverage, and the government will then arrange with a third party insurer to provide the coverage to women who need it, at no expense to, or involvement of, the organization itself.
But the Little Sisters (and other religious organizations that have their own cases) are suing on the grounds that having to sign a letter declaring that they do not want to provide contraception coverage is itself an intolerable burden on their religious freedom. You might want to read that last sentence again. Having to sign a letter opting out of contraception coverage is just too much to bear.
Not surprisingly, since this case is an attack on a provision of the ACA, every Republican everywhere has sided with the organizations demanding relief from their letter-signing burden. Yet at the same time that they see government's crushing hand there, they want government to put as many obstacles as possible in the way of women who need abortions.
And that turns on the limits of government burdens as well. In the Supreme Court's Planned Parenthood v. Casey decision in 1992, Justice Sandra Day O'Connor established the "undue burden" standard as the means to judge whether a restriction on women's access to abortion was constitutionally permissible. The government is allowed to regulate the procedure and even make it somewhat difficult for women to obtain, so long as the burden is not "undue." So what constitutes an undue burden?
The answer is still unclear, but at the moment, here are some things that are supposedly not an undue burden:
1. Making you drive a couple of hundred miles to reach a provider, because your state has successfully shut down all those near you.
2. Making you go to a clinic, leave, wait 48 hours, and return before you can have the abortion you want.
3. Making you listen while a doctor reads you a bunch of false information written by Republican state legislators designed to scare you out of getting the abortion.
4. Making you submit to an unnecessary medical procedure (an ultrasound) against your will.
All of those and more are part of state laws passed by Republicans throughout the country. Just in the first half of this year, state legislatures passed 51 new restrictions on abortion rights, adding to the hundreds that have been passed in the last few years. Texas' latest round of abortion restrictions, which has led to the closing of many of the state's abortion clinics (as it was intended to do), was recently put on hold by the Supreme Court while they consider whether to hear a challenge to the law. If and when they do, there's a strong possibility that the five conservative justices will decide that virtually no restriction short of formally outlawing all abortions constitutes an undue burden on a woman's rights.
Which suggests that the burden isn't really the point — what makes the difference is how you feel about the underlying issue. I'm sure that if Oklahoma passed a law declaring that a woman had to recite pi to 100 decimal places while juggling chainsaws blindfolded before she could get an abortion, at least a few of the justices would think that didn't constitute an undue burden on the exercise of her rights.
And while I can't say I know much about what those nuns are thinking, I'm fairly certain that their Republican allies just want to use their case as a way to undermine the ACA, light though the burden of letter-signing might be. What you consider government's heavy hand is sometimes genuinely heavy — but sometimes it's just government doing something you'd rather it didn't do at all.