Federal judges again have decided they know better than the Little Sisters of the Poor whether the Sisters’ own beliefs are being violated. Their decision is both legally and morally appalling.
The latest judicial usurpation of the Sisters’ religious liberty came in an Oct. 22 decision by two of three judges of a panel of the 9th Circuit Court of Appeals. It involves the long-running dispute about whether, and how, the federal government can require that health insurance plans offered by faith-affiliated groups (such as the Sisters) include coverage for contraceptives or abortifacients that the groups believe violate their faiths.
The Supreme Court twice ruled largely in favor of the Little Sisters, although the justices left it to federal agencies and lower courts to decide the precise parameters of the Sisters’ victories. That redelegation of authority spurred numerous new court challenges nationwide.
The 9th Circuit decision involved multiple procedural and regulatory questions, on some of which the judges made more intellectually defensible decisions than others. Let’s set all those aside for now, though, and concentrate on the part of the decision that addressed the central merits underlying all the Sisters’ cases. Alas, the 9th Circuit panel again opined in a way hostile to the Sisters’ liberty.
Despite hints to the contrary from the Supreme Court, the circuit judges again belittled the Little Sisters’ contention that the Obama-era “accommodation” of their concerns remained an imposition on their faith. The accommodation is described like this (with internal citations omitted) by the circuit judges: “An organization with a sincere religious objection to arranging contraceptive coverage need only send a self-certification form to the insurance issuer or the [third-party administrator], or send a written notice to the [Department of Health and Human Services]. Once the organization has taken the simple step of objecting, all actions taken to pay for or provide the organization’s employees with contraceptive care is carried out by a third party, i.e., insurance issuer or TPA.”
This is balderdash, in both principle and practice.
In practice, even the Obama administration admitted that (to cite a brief for the Sisters) “a ‘separate’ plan under the accommodation [still] must be ‘part of the same plan as the coverage provided by the employer.’” In the words of Chief Justice John Roberts, and as agreed by Obama’s solicitor general, it is still part of “one insurance package.” The solicitor general furthermore said he would be “content” for the court to decide this set-up puts an improperly “substantial burden” on the Sisters’ religious liberty as long as he won his case on other grounds.
The Sisters argue that if they offer and provide a plan that provides abortifacient coverage, then it doesn’t matter if the government or insurer pretends someone other than the Sisters are magically paying for the part of the plan covering abortifacients. Even if the Sisters file a form saying they are not responsible for the abortifacient coverage, that they are in effect “washing their hands” of it, the Sisters say they are still being coerced into material participation in what they consider evil.
The 9th Circuit cavalierly skimmed over this entirely logical, practical argument, dismissing it as “at most a de minimis burden.”
What the 9th Circuit did is even worse in principle than in practice. In effect, it says judges know better than the faith organization itself whether or not an action comports with a central tenet of that faith. This notion runs appallingly counter to the entire American tradition of forbidding government from deciding the validity of religious beliefs.
The Little Sisters of the Poor on Oct. 9 already appealed to the Supreme Court (in yet another case) to decide these issues, on the merits, once and for all. This terrible 9th Circuit decision makes the Sisters’ plea more urgent. The Supreme Court should stop punting the issue away and instead accept the case and rule in the Sisters’ favor.
