Regardless of one’s personal beliefs, it is hard to defend the federal government’s mission to force nuns to violate their faith.
That’s ultimately what the Obama administration is trying to do by requiring religious nonprofits to provide a range of birth control to employees.
The nuns’ fight is part of a longstanding pushback by faith-based institutions against the contraceptive mandate under Obamacare. Through the law, the Health and Human Services Department requires employers to offer a wide array of birth control free of charge to employees in their insurance plans, including a handful of drugs and devices that can cause early abortions.
The mandate spurred dozens of lawsuits, from both for-profit business owners and nonprofit groups who believe the requirement goes against their First Amendment religious freedoms.
The Supreme Court sided against the government in the Hobby Lobby case last year, ruling that individuals shouldn’t have to give up their religious rights to run a business.
But nonprofits are still fighting the administration over its most recent “accommodation” for religious schools, charities and hospitals. The government has inched reluctantly the past few years toward giving these faith-based institutions more leeway. And it thinks it has a good compromise in allowing the groups to sign a government form asking a third party to cover the contraceptive costs in their health plans.
The nonprofits recognize a shell game when they see one. More than 50 lawsuits related to the mandate have been filed. And seven cases are currently before the Supreme Court; justices will decide this fall whether to take them on.
One of the most prominent cases comes from the Colorado-based Little Sisters of the Poor. The nuns care for the elderly poor, with 30 homes in the U.S.
The government has exempted churches and church-run ministries from the contraceptive mandate — but it didn’t extend the same rights to organizations like the Little Sisters. Apparently, these nuns aren’t religious enough by the government’s standards.
If the Little Sisters don’t comply by asking someone else to pay for the contraceptive coverage — typically the insurance company — they face millions in IRS fines.
“The most baffling thing is that the government doesn’t need the Little Sisters to distribute contraceptives,” says Adele Keim, legal counsel with the Becket Fund for Religious Liberty, which is representing the Little Sisters, and also represented Hobby Lobby.
Keim points to the federal program Title X, which provides funding for a range of birth control options through clinics like Planned Parenthood.
“There’s no reason the Little Sisters have to do this,” Keim says.
Nonprofits in Michigan are also fighting the mandate, although they received a blow last Friday when the 6th U.S. Circuit Court of Appeals said it won’t strike down the mandate because the accommodation is adequate. The Michigan Catholic Conference, the Catholic Charities Diocese of Kalamazoo and some Tennessee Catholic nonprofits argued the mandate violated their rights under the federal Religious Freedom Restoration Act.
Dave Maluchnik, director of communications for the Michigan Catholic Conference, says these groups are still being forced to “trigger” the birth control coverage by signing the government’s opt out form — and that’s too much involvement in their view.
“They are still participating,” Maluchnik says.
He also sees the mandate as a direct affront to the First Amendment, with the government telling religious organizations how to conduct their affairs.
The Supreme Court has already granted interim relief five times from the mandate to religious groups, including the Little Sisters, Wheaton College and the Michigan Catholic Conference. And Keim thinks it is “much more likely than not” the High Court will take up these cases.
Given what’s at stake, it should.
“The federal government is determining who is and who isn’t Catholic,” Maluchnik says.