A Unanimous SCOTUS Decision Involving Religious Liberty

The U.S. Supreme Court (SCOTUS) avoided issuing a major ruling on May 16th in a combined religious liberty case – Zubik v. Burwell.  In a unanimous decision, the justices wrote that the Court “expresses no view on the merits of the cases” but were instead sending the case back down to the lower courts for opposing parties to work out a compromise.

What is this case, and what’s it about?  The case, Zubik v. Burwell, combines seven challenges to the Health and Human Services' (HHS) contraceptive/abortifacient mandate.  To fulfill the requirements of the Affordable Healthcare Act (aka Obamacare), the federal government passed a regulation (often called the “HHS Mandate”) that attempts to force groups into providing insurance coverage for contraceptives, sterilization and abortifacients.  Some religious groups, such as the Little Sisters of the Poor (LSP), objected on the grounds that the requirement violates their religious liberty as protected by the 1st Amendment and the federal Religious Freedom Restoration Act (RFRA).  HHS offered an accommodation that the LSP found to be insufficient.

SCOTUS was asked to decide, as SCOTUS Blog explains, whether the government has offered nonprofit religious employers a means to comply and whether the HHS satisfies RFRA’s test for over-riding sincerely held religious objections in circumstances where HHS itself insists that over-riding the religious objection will not fulfill HHS’s regulatory objective … namely, the provision of no-cost contraceptives to the objector’s employees.

Who are Zubik and Burwell?  The plaintiff in the case is the Most Rev. David A. Zubik, the 12th Bishop of the Roman Catholic Diocese of Pittsburgh.  Rev. Zubik supervises a diocese that oversees LSP.  This is why the case is still often referred to as the Little Sisters case … since the original lawsuit was LSP Home for the Aged v. Burwell.  The defendant in the case is Sylvia Mathews Burwell, the Secretary of HHS.

Who are the Little Sisters of the Poor?  LSP is an international Roman Catholic Congregation of Religious Sisters that serves more than 13,000 elderly poor in 31-countries around the world.  The first home opened in America in 1868, and now there are nearly 30-homes in the U.S. where the elderly and dying are cared for.

What was the accommodation, and why was it rejected?  The proposed accommodation would require the LSP to find an insurer who will cover all of the things they oppose: sterilization, contraceptive, abortifacients and so on.  They would also be required to sign a form that triggers the start of that coverage of those items and procedures that they find objectionable.  LSP believe that the accommodation does not prevent them from violating their religious beliefs.

Isn’t this merely a Catholic issue?  No.  Many Protestant nonprofits have similar objections as LSP.  The current case combines the cases that were brought by East Texas Baptist University, Southern Nazarene University and Geneva College.  Other groups who have brought similar lawsuits, such as Wheaton College, will also be affected by the outcome of this ruling.

Doesn’t the “religious employer exemption” cover LSP and similar nonprofits?  No, the general exemption the HHS provides applies only to churches and certain types of church-like organizations.  Most religious nonprofits do not qualify.

Doesn’t the mandate apply to everyone equally?  No.  In fact, 1-in-3 Americans do not have a plan that is subject to the mandate HHS is attempting to force on LSP.  Many large corporations — such as Exxon, Chevron and Pepsi — are already exempt from the mandate because they never changed their plans and are grandfathered.  The government does not even require the nation’s largest employer — the U.S. military — to provide these services through their family insurance.

What if LSP simply refuse to comply?  If LSP do not provide coverage for contraceptives, sterilization and abortifacients, the government is threatening to fine them with $70-million in fines per year.

Didn’t the Hobby Lobby case already resolve this issue?  Last year, SCOTUS agreed some owners of closely held for-profit corporations (like Hobby Lobby) have sincere Christian beliefs that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point.  SCOTUS found that the HHS mandate violated RFRA because it imposed a substantial burden (i.e., if the companies refused to violate their beliefs, they would face severe economic consequences: about $475-million per year for Hobby Lobby; $33-million per year for Conestoga; and $15-million per year for Mardel).  The government also failed to satisfy RFRA’s least-restrictive-means standard, since the government could assume the cost of providing the four contraceptives to women unable to obtain coverage due to their employers’ religious objections or extend the accommodation that HHS has already established for religious nonprofit organizations to nonprofit employers with religious objections to the contraceptive mandate.  In that case, the companies can qualify for an exemption by filling out a form and submitting it to the government.  This type of accommodation was already available to religious nonprofits.  But this is a procedure LSP and others find insufficient to resolve their religious objections.

Rev. Dr. Kenneth L. Beale, Jr.

Chaplain (Colonel-Ret), U.S. Army

Pastor, Ft. Snelling Memorial Chapel