Despite three other trips, Obamacare made an encore appearance at the U.S. Supreme Court today -- its first since Justice Antonin Scalia’s death. At the heart of this case is the administration’s order that religious business owners, schools, charities, and nonprofits surrender their beliefs and be forced to facilitate coverage that violates their moral beliefs -- or face crippling fines.
In one of the more shocking overreaches of the Obama era, the White House’s hostility even extended to a group of Catholic nuns: Little Sisters of the Poor. As far as the Department of Health and Human Services (HHS) was concerned, even they should have to facilitate the provision of contraception and abortion-causing drugs! To help cushion the blow, the administration announced an “accommodation” that would supposedly spare religious groups from the choice of violating their faith or the law. The only problem is that the “compromise,” which drives the coverage through a third party, doesn’t solve anything. It still makes men and women complicit in the act and payment of the coverage.
Earlier this morning, the justices heard oral arguments in the case of Zubik v. Burwell, consolidated with six other cases (including Little Sisters of the Poor) with dozens of plaintiffs between them, and doubtless affecting scores more of religiously-affiliated universities, organizations, individuals, and others whose religious objections have not yet made it into court. The argument heated up quickly, with Paul Clement, who represented some of the religious challengers, being vigorously questioned by Justices Sotomayor, Ginsburg, and Kagan about how government could continue to function if religious actors could consistently object to regulatory schemes like the HHS mandate.
Clement, however, skillfully parried away their questions. “My clients do not object to objecting” -- what they have a problem with is being forced to violate their religion by a process the government calls an accommodation. Just because the government “call[s] it an accommodation doesn’t mean its immune from [Religious Freedom Restoration Act] analysis,” Clement noted. When the Chief Justice asked Obama’s top lawyer whether the administration could require even churches to comply with the mandate through signing the form, he said yes. (Let’s hope this isn’t a view of the future under this or a similarly hostile administration.)
Noel Francisco, continuing the argument on behalf of other challengers, honed in on the fact that churches were already exempted under the HHS mandate. The administration has even exempted large, secular corporations like Chevron, Exxon, Visa, and Pepsi Bottling! The existence of other these exemptions and whether they showed that the government did not actually have a compelling interest in imposing the HHS mandate’s requirement on the Little Sisters was a recurring theme throughout the argument. If the government has such a compelling interest, why not exempt the Little Sisters and others like them, since it already has exempted churches and large corporations?
Paul Clement summed up this case best with the closing line of his rebuttal argument: “My client would love to be a conscientious objector. The government insists they be a conscientious collaborator.” For more on the stakes in this case, check out the columns by FRC’s legal and religious liberty experts Travis Weber (“Little Sisters and Big Brother”) and Cathy Ruse (“Little Sisters, Little Pills: It’s All about Power”).