by Kurt Jensen
WASHINGTON (CNS) — Visuals often are much easier to grasp than a complicated thicket of issues. That may be why the Little Sisters of the Poor have become the public face of Zubik v. Burwell, which goes before the U.S. Supreme Court March 23.
Zubik is not just about the religious order’s legal challenge of the Obama administration’s contraceptive mandate for employers. It is a consolidated case also involving East Texas Baptist University, Southern Nazarene University and Geneva College, which is a Presbyterian institution, as well as Catholic entities, including the Archdiocese of Washington, the dioceses of Pittsburgh and Erie, Pennsylvania, and Priests for Life.
Both sides on the mandate issue have been working to attract public support. The Little Sisters, like Priests for Life, have launched a website explaining their side of the issue, and of any of the cases the Little Sisters suit has received the most attention, media and otherwise.
In January, two Little Sisters sat in the House Chamber for the State of the Union address, invited by House Speaker Paul Ryan, R-Wisconsin. The religious order also has been invoked on the campaign trail for the Republican presidential nomination by U.S. Sen. Marco Rubio, R-Florida, and former Florida Gov. Jeb Bush. Rubio and Bush, who is now out of the race, pointed to the order’s mandate suit as part of the ongoing fight for religious liberty.
Pope Francis met with some of the sisters in Washington last September during his apostolic visit.
Once the high court hears oral arguments in Zubik v. Burwell, a decision is expected before the court term ends in June.
With the death of Associate Justice Antonin Scalia, it is widely predicted the result will be a 4-4 tie. In the 2014 Hobby Lobby case, Scalia provided the deciding vote in a 5-4 decision, and two private, for-profit companies that objected to the mandate on moral grounds prevailed in their argument that complying placed an undue burden on their religious freedom. The court ruled that closely held companies — meaning, with limited shareholders — are exempt.
In all of the cases to be argued before the high court in March, appellate courts in various jurisdictions sided with the Obama administration.
On Feb. 18, the 11th U.S. Circuit Court of Appeals in Atlanta ruled against the Eternal Word Television Network and three other Catholic entities. That ruling also said the HHS mandate should not be enforced until the Supreme Court rules on the issue.
One ruling that has gone against the Obama administration was handed down Sept. 17, 2015, by a three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis. The panel upheld a district court ruling that said the mandate does burden the religious liberty of the plaintiffs, who include three Christian colleges in Missouri, Michigan and Iowa.
The Denver-based Little Sisters order, which operates nursing homes for the elderly poor, has been the symbol of the case since Dec. 31, 2013, when Supreme Court Justice Sonia Sotomayor issued a stay hours before the order would have had to comply with the mandate.
Under the federal Affordable Care Act, most employers, including religious ones, are required to cover employees’ artificial birth control, sterilization and abortifacients, even if employers are morally opposed to such coverage.
Churches and institutions that primarily employ and serve their own members are exempt.
The Little Sisters, like the other plaintiffs in Zubik v. Burwell, object to doing this for their employees under their health insurance plan, the Christian Brothers Employee Benefit Trust. Citing the 1993 Religious Freedom Restoration Act, known as RFRA, the religious order says the mandate amounts to an undue burden on their free exercise of religion.
To respond to religious objections, the Department of Health and Human Services created an “accommodation.” Any organization with religious objections to providing the coverage must state that in writing in order for HHS or the Department of Labor to direct a third party provide contraceptive to the organization’s employees.
In its friend of the court brief filed in the Zubik case, the government says the case comes down to “whether the RFRA entitles petitioners not only to opt out of providing contraceptive coverage themselves, but also to prevent the government from arranging for third parties to provide separate coverage to the affected women.”
“It’s unprecedented for an organization to actually oppose the process for which they are allowed to opt out of something,” said Gretchen Borchelt, a vice president at the National Women’s Law Center, in an interview with Catholic News Service. The center, based in Washington, is one of the organizations that support the government’s stance.
The Catholic and other plaintiffs in Zubik object to that third-party notification because they say they still would be complicit in providing coverage they oppose.
The brief from the U.S. Conference of Catholic Bishops zooms in on the argument: “History is replete with instances in which an individual went to his or her death to avoid committing an act objectionable to the individual on religious grounds, though thought by others to be innocuous.”
As examples, the USCCB cites St. Thomas More, beheaded by King Henry VIII for not accommodating the king’s demand for a divorce; Polycarp, an early Christian martyr burned at the stake for his simple refusal to say “Caesar is Lord”; and Eleazar, who, in the Second Book of Maccabees, was recorded as having been tortured and killed for refusing to eat meat not allowed by Jewish dietary laws
Refusing to comply with the mandate means substantial fines, which in the case of the Little Sisters have been estimated at $70 million a year. According to the Becket Fund for Religious Liberty, which represents the religious order, the fines range depending on the nursing facility run the order, which has close to 30 homes for the elderly. Some fines could run $2,000 per employee per year or amount to $100 per employee per day.
The USCCB brief argues that the Little Sisters order would face “financial ruin” as a result. “No one benefits from such an outcome — not the organizations, their donors, their clients, or their employees.”
As for “substantial burden,” the amicus brief from former state attorneys general in support of HHS maintains that the onus does not exist, since religious organizations would not even be informed of which of their employees are receiving contraceptive coverage.
Other issues include claims of a financial burden on employees. As an example, the National Women’s Law Center brief maintains that the employees of the Little Sisters, without the accommodation, would have to pay more for contraceptive measures. The alternatives they’ve put forward “remove contraception from a woman’s regular insurance system, and impose additional administrative, logistical and monetary burdens that would make it difficult, if not impossible, for women to access contraception.”
Mark L. Rienzi, a lawyer with the Becket Fund, calls that “a very strange argument” since the government-operated health-care exchanges provide a workable alternative. Those, he said, are “generally praised by the government as providing affordable, comprehensive, easy-to-access coverage. In fact, that’s precisely the way many employees of small businesses get their insurance. So the notion that it is somehow too hard, too complicated, or too expensive for employees of the Little Sisters is bizarre.”
What happens if the Supreme Court deadlocks 4-4? The rulings of the lower courts would be affirmed or the court may set the case aside for re-argument when Scalia’s seat is filled, predicted Rienzi.
If so, “we can come back in a year,” he told CNS.