Thursday, July 16, 2015

Big Brothers of the Poor

The Tenth Circuit forces nuns to obey the contraception mandate.

July 15, 2015 7:06 p.m. ET

These are inauspicious times for religious liberty, and this week’s illustration is the appeals court decision on Tuesday that instructs an order of Catholic nuns to comply with ObamaCare’s birth-control mandate. A 2-1 majority of a Tenth Circuit Court of Appeals panel informs these believers that their moral convictions are wrong on the merits, so shut up and submit.

The Little Sisters of the Poor run nursing homes and hospices and object to their health plan providing contraception including abortifacients. They’re challenging the so-called accommodation afforded in 2012 to religious nonprofits like parochial schools and soup kitchens. Typical of the Obama Administration’s bullying conception of religious freedom, the Little Sisters conclude that the form they must sign to get a supposed exemption from the mandate implicates them in a grave sin.

That’s because their health plan is self-insured, meaning that they use an insurer as a third-party administrator and pay claims directly through a trust. When the Little Sisters join the opt-out contract, their insurer is then obligated to cover birth control for “free” that would not otherwise be provided but for the opt out.

The reality of the accommodation’s accounting fiction is also that the Little Sisters must ultimately settle the bills for the drugs that are supplied in their name. If they refuse to sign the opt out, each of their homes must pay penalties of roughly $2.5 million a year.

The nuns claim this coercion violates the Religious Freedom Restoration Act, or RFRA, which says that when the government substantially burdens the free exercise of religion, it must use the least restrictive means to do so. Au contraire, assert Judges Scott Matheson and Monroe McKay: “Although plaintiffs allege the administrative tasks required to opt out of the mandate make them complicit in the overall delivery scheme, opting out instead relieves them from complicity.” So there.

In other words, the Little Sisters believe they are commissioning a moral transgression. The Tenth Circuit is telling them, no, the opt out is “unremarkable.” Yet standard judicial practice is to refrain from reaching unresolvable questions of theology or ethics, and RFRA was written to give the benefit of the doubt to the faithful.

As Judge Bobby Ray Baldock comments in his dissent, “the accommodation scheme foists upon the self-insured plaintiffs a choice with dire consequences” in violation of RFRA. A less restrictive method could be federal birth-control vouchers, rather than conscripting the health insurance of religiously affiliated institutions.

This case is destined for the Supreme Court, which has stayed the Little Sisters mandate pending appeal. But the spectacle of the Administration attempting to crush the conscience of a religious order is a lasting discredit to the U.S. traditions of pluralism and tolerance.