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Tags: legal | battles | embryos | aca

Left Should Leave the Nuns Alone

rally in support of little sisters of the poor four years ago

Nuns supporting Little Sisters of the Poor, attend a rally in front of the U.S. Supreme Court, March 23, 2016 in Washington, DC. At the time, the high court was hearing arguments in Little Sisters v. Burwell. (Mark Wilson/Getty Images)

Ramesh Ponnuru, Bloomberg Opinion By Friday, 08 May 2020 03:23 PM EDT Current | Bio | Archive

After years of legal battles between the federal government and the Little Sisters of the Poor, progressives are in court arguing that the two parties aren’t allowed to stop fighting even if they would prefer it.

The case began in 2012, when the administration of President Barack Obama interpreted the Affordable Care Act (ACA) to impose a mandate on most employers to provide insurance coverage for sterilization and contraception (including methods of contraception that the administration acknowledged could cause human embryos to die).

It exempted many employers from this mandate — but not, initially, religious organizations such as the Little Sisters, a group of Catholic nuns who minister to the poor and adhere to their church’s teachings on sterilization, abortion and contraception.

Political and legal pushback eventually led the Obama administration to offer the nuns and other religious nonprofits an "accommodation." They could sign a form authorizing the use of their health plans’ infrastructure to provide the disputed services, supposedly at no cost to themselves.

Or they could pay large fines.

The nuns said no: They did not want to take any action to facilitate what they consider wrongs.

The Religious Freedom Restoration Act, a federal law enacted in 1993, says that the federal government may impose a substantial burden on the free exercise of religion only when it is the least restrictive way to advance a compelling governmental interest.

That condition is not met here.

Assuming that making contraception even more widely available is a compelling interest, the government can do it in many ways without involving the nuns at all.

In 2016, the U.S. Supreme Court unanimously urged the government and the objectors to come to an agreement. The Donald Trump administration’s solution was to exempt employers with religious or moral objections to the mandate from having to comply with it.

The Sisters were, of course, delighted.

But now the government of Pennsylvania, backed by progressive groups, is insisting that the exemption can’t be given. It persuaded a federal court to rule that the religious-freedom law authorizes courts to grant exemptions, but not the executive branch.

That view can’t be right.

The Supreme Court unanimously assumed otherwise when it sent the parties to work something out in 2016. The Obama administration’s original accommodation, too, relied on its authority to modify rules to comply with the religious-freedom act.

So, for that matter, did the original Obamacare mandate itself, which, for example, exempted houses of worship.

In oral argument this week, Justice Ruth Bader Ginsburg took another tack in going after the exemption, saying that the Trump administration would "toss to the winds entirely Congress's instruction that women need and shall have seamless, no-cost, comprehensive coverage."

Progressive legal commentators have claimed that America’s tradition of religious exemptions does not license ignoring large harms on third parties such as the women who will no longer have this coverage.

An initial obstacle for Ginsburg is that Congress didn’t issue any such instruction about contraception and sterilization. It was the Department of Health and Human Services (HHS), during the Obama administration, that decided the policy. Congress also didn’t put any language in the Affordable Care Act setting aside the Religious Freedom Restoration Act, as it could have.

The opponents of exemptions to the contraception mandate have accidentally poked more holes in the case. A group of military historians submitted a brief arguing that past religious accommodations have sometimes relieved burdens on free exercise without eliminating them entirely.

Thus conscientious objectors to wars have been required to perform alternative services.

The example itself, though, shows that religious liberty has been protected even at the cost of very serious harms to third parties: Being drafted in the place of an objector exposes someone to a much heightened risk of death, not just to a co-pay.

Then there’s the failure of Pennsylvania to find anyone, inside or outside its borders, who needs the Sisters to facilitate contraceptive coverage for them.

The state even submitted testimony from doctors saying that their patients had not experienced difficulty affording contraception in 2018.

Its point was that patients were free of worry after the Affordable Care Act was implemented. But that was also after the Supreme Court had enjoined the enforcement of the mandate on the Little Sisters in the hope of an agreement.

Letting the nuns and like-minded employers practice their religion as they see fit has not caused any demonstrated harms to anyone, and if it had, the government would have ample means of addressing the problem while respecting religious liberty.

The law says that in such cases, respect is required.

Leave the nuns alone.

Ramesh Ponnuru is a Bloomberg View columnist. He is a senior editor of National Review and the author of "The Party of Death: The Democrats, the Media, the Courts, and the Disregard for Human Life." Read Ramesh Ponnuru's Reports — More Here.

© Copyright 2020 Bloomberg News. All rights reserved.


Letting the nuns and like-minded employers practice their religion as they see fit has not caused any demonstrated harms to anyone, and if it had, the government would have ample means of addressing the problem while respecting religious liberty.
legal, battles, embryos, aca
Friday, 08 May 2020 03:23 PM
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