Everyone, it seems, knows better about how to live one’s faith in the public square than the nuns who have to facilitate contraception coverage for people who are sworn to celibacy. The New York Times editorial board followed the White House lead on arguing that the nuns aren’t really violating Catholic doctrine by facilitating access to contraception, despite what they themselves believe. And even if it did, the requirement doesn’t place a big burden on religious expression:
A careful review of the matter should persuade Justice Sotomayor and her Supreme Court colleagues, who may also become involved now, that the alleged threat to religious liberty is nonexistent and the stay should be lifted while litigation proceeds in the lower courts. …
The Colorado nuns’ group, the Little Sisters of the Poor, is a religiously affiliated organization that is exempt from the health law’s requirement that employer insurance plans cover contraception without a co-pay. The audacious complaint in this case is against the requirement that such groups sign a short form certifying that they have religious objections to providing coverage for contraceptive services, a copy of which would go to their third-party insurance administrator. The nuns say that minor requirement infringes on religious exercise in violation of the Religious Freedom Restoration Act.
Under that law, the federal government may not “substantially burden a person’s exercise of religion” unless the government demonstrates that the burden is the least restrictive means of furthering a compelling interest. The certification requirement, an accommodation fashioned by the Obama administration to bolster the protection of religious exercise without depriving women of an important benefit, does not rise to a substantial burden. A federal trial court denied a preliminary injunction on that basis and a federal court of appeals declined to issue an injunction pending appeal, though decisions in some similar cases have come out differently.
This, however, has the burden issue backward — and always has. The question here is why the federal government has imposed this requirement at all, and why it meets a state interest so substantial that it forces other people to pay for contraception, including employers and schools. Despite the scare-mongering from the White House, there isn’t any difficulty for American women (or men) in accessing contraception. The CDC performed a long-range study of unplanned pregnancy, from 1982 to 2008, and found no evidence that lack of access to contraception contributed to it at all. “Contraceptive use in the United States is virtually universal among women of reproductive age: 99 percent of all women who had ever had intercourse had used at least one contraceptive method in their lifetime,” the study concluded, and didn’t even bother to list lack of access as a contributing factor.
If the federal government wants to expand access to contraception, they can offer it directly — and in fact, they already do. Title X programs, which HHS has managed for decades, have routinely been funded with bipartisan support in Congress to ensure that poor women have access to reproductive choices. For most women, though, birth control is inexpensive and easily accessible, as the CDC found when it studied the issue of unplanned pregnancy. Just as with any other life choices — say, for instance, food — the assumption is that women and men will make responsible choices with the wages they earn for the lifestyle they wish to lead, and that the federal government won’t force their employers to directly subsidize those choices above the wages and benefits they offer in a free marketplace.
This demonstrates the absurdity of what happens when government mandates that the burden for lifestyle choices falls on those other than the individual him/herself. People who oppose those lifestyle choices object to having their pockets picked to fund them, and we end up telling nuns to cover contraception despite their celibacy. And then, when they object to facilitating access to contraception because of their intention to live their religious beliefs in their own actions, we get the New York Times and the White House insisting that the nuns don’t know how to do so. Had we just left things alone and acknowledged that birth control choices were only the business of the individual, this absurdity wouldn’t have arisen in the first place. Instead, the government decided to solve a non-problem by the most burdensome method possible.
The Department of Justice responded similarly today, but also brings up an issue of standing (which the NYT mentions as well) that is more responsive:
“The employer-applicants here are eligible for religious accommodations set out in the regulations that exempt them from any requirement ‘to contract, arrange, pay, or refer for contraceptive coverage,’ ” Verrilli wrote.
“They need only self-certify that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services.”
Religiously oriented nonprofits around the country have objected to the requirement and said it violates protections granted by the Religious Freedom Restoration Act.
They contend that if they sign the self-certification letters, that makes them complicit in the government’s plan to provide contraceptive services, because the law provides that third-party insurers will still provide the coverage.
But Verrilli said the Little Sisters case provides a weak test case. Their third-party insurer is a church plan that the government contends cannot be required to provide contraceptive services.
Most of the nonprofits challenging the new requirement have received injunctions while they pursue their litigation. No appeals court has yet ruled on the merits of their arguments.
That is the ERISA legislation, which exempts church groups from various requirements. However, the HHS definition of a church group in relation to the “compromise” is also at issue. That definition required the groups to primarily employ members of their own faith, and to primarily serve members of their own faith. The Little Sisters of the Poor do not discriminate in their service to the community, which is another issue that courts will have to decide. We’ll see if Sonia Sotomayor buys the DoJ explanation and lifts the injunction, or decides to put the whole mess on hold until all of the issues reach the Supreme Court.
Update: Kathryn Jean Lopez wonders: “What does the administration have against the Little Sisters of the Poor?”
Update: “found no evidence that access to contraception…” should have been “found no evidence that lack of access to contraception…”. Fixed above.
Update: Gabriel Malor has a more specific question:
Tell me again about a so-called mandate that's so important you can't exempt some nuns while the lawsuit is pending. pic.twitter.com/IRDijg1YbT
— Gabriel Malor (@gabrielmalor) January 3, 2014
Maybe HHS should have focused on having a website that acknowledged childbirth before worrying about contraception.