May 16

Supreme Court Justices’ unanimous ruling favors the nuns.

It was sort of a non-decision, but all eight justices jointly agreed to vacate lower court rulings, call on both sides to work things out better (which was really a directive to government lawyers), and bring sanity to a long, unnecessary and costly ordeal that has run through the court system across the country over a federally mandated contraceptive delivery scheme that already exempted major corporations and millions of Americans.

Enough already. So said the ruling, in so many words.

The parties, the court said, should have another opportunity to work out a way to deliver contraceptives that doesn’t violate the religious objections of the Little Sisters and their co-plaintiffs.

Most important, the Supreme Court took away the administration’s tool for bullying: The government, it said, “may not impose taxes or penalties” on those who refuse to authorize their plans to provide the contested coverage.

It was so targeted against Catholic and other Christian groups, it had to be reconsidered.

“The Little Sisters won, but what this unanimous ruling shows is that there was never a need for anyone to lose,” said (Becket Fund for Religious Liberty legal counsel Mark) Rienzi. “The government will still be able to meet its goal of providing these free services to women who want them—not just for those with religious plans—but for the tens of millions in exempted corporate and government plans.”

The government always had that ability, was already doing it in those already exempted, and never needed to choose this controversial challenge to religious liberty in America.

…the opinion is an obvious rebuke to the Obama administration — and rightly so. The Obama administration has shown no compunction about using the full force of the federal government to coerce a group of nuns into violating their religious vows. But following oral arguments in March, the Court requested supplemental briefs from both parties addressing whether the government could provide contraception coverage without entangling religious nonprofits, and the government grudgingly admitted that it was possible. According to the Court, the “substantial clarification and refinement” of the parties’ positions suggests that a compromise satisfactory to both sides is possible.

If not for the government’s obstinacy, that would have been possible long ago. HHS had already exempted an enormous number of employers from the mandate, among them large corporations — Exxon, Pepsi, and Visa — and government entities, including New York City and the U.S. military. Tens of millions of American employees have insurance plans exempted from the mandate. Yet the Obama administration has insisted on foisting its fiat on nuns, archdioceses, Christian colleges, and the like. The liberals on the Court could have sanctioned this contemptible imposition. A 4–4 split would have left the lower courts’ rulings in place, and three of the four courts had ruled against the Little Sisters or their co-plaintiffs. The Court’s willingness to vacate those decisions suggests that, despite its left-leaning majority, this Court is not entirely hostile to religious liberty. This is, recall, largely the same Court that ruled unanimously against the Obama administration in Hosanna-Tabor when the federal government claimed for itself the power to determine who is and is not a “minister.” (Emphasis added)

Hosanna-Tabor was decided unanimously on January 11, 2012. Nine days before the federal government turned around and claimed for itself again the power to determine what a religious ministry, institution and employer was, and what it could and must do. It took four years and four months, and one fewer justice, for the Supreme Court unanimously to rule again in favor of this fundamental freedom protected by law.

In the nearly six months left before the presidential election, the parties’ and candidates’ views of religious freedom will play a more important role in debates, townhalls, and campaigns, as they should.

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Mar 29

Justices want more information.

Coming less than one week after hearing the Little Sisters of the Poor case the U.S. Supreme Court took the unusual step

of asking for additional information, telling both sides to discuss alternative ways to avoid forcing religious women to provide services against their faith.
“This is an excellent development. Clearly the Supreme Court understood the Sisters’ concern that the government’s current scheme forces them to violate their religion,” said Mark Rienzi, lead attorney for the Becket Fund for Religious Liberty. “We look forward to offering alternatives that protect the Little Sisters’ religious liberty while allowing the government to meet its stated goals.”

As one journalist who has covered this story since the government issued the HHS mandate in January 2012, and the lawsuits against it that started coming within days or weeks, this threw me (and surprised a lot of court watchers and litigants involved in these cases). Because we’ve had over four years of dozens upon dozens of lawsuits in different courts at different levels making the case and elaborating the details abundantly clearly, that there are alternatives already in place and working to carry out the government birth control delivery scheme (such as government run programs themselves) while exempting major corporations and essentially one-third of Americans from this mandate already (info central has it all here).

But okay, this is good news, reflecting that justices aren’t buying the government’s claim that it already made an “accommodation” for the Little Sisters by having them sign a paper saying they object, but then explicitly granting a third party to provide the drugs and services to which they object in the first place.

Justices deliberating over this case must have finally seen through that smoke screen, because this request for new alternatives suggests a rejection of what the government claimed was an alternative, a false accommodation that wasn’t.

It’s a positive development, claims NRO.

Specifically, the Court wants to know if there are alternative means of providing contraceptives to employees without requiring the Little Sisters to participate in the process:

(snip from the court order):

“For example, the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.” (emphasis added)

Before this order came out Tuesday, the court was already pretty much split 4-4 over the religious liberty test involved in the HHS mandate, and especially how it upheld (or didn’t) the Religious Freedom Restoration Act. Justice Scalia’s untimely death impacts this decision most notably. But Justice Breyer struck some in the courtroom as unconvinced by the government’s arguments last week. If just one justice joins the four expected to uphold religious freedom rights violated by the HHS mandate, it could finally end this unbelievable saga of government infringement on one of the most basic, fundamental and cherished freedoms we have.

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Feb 18

And one fewer Justice on the high court.

On Thursday of last week, Women Speak for Themselves (WSFT) launched a campaign, loosely aligned with Valentine’s Day weekend and beyond, to ‘show a little love to the Little Sisters‘. It coincided with a new website for WSFT, loaded with resources and links to amicus briefs its founder filed at the Supreme Court, including this latest one on behalf of the Little Sisters in their struggle to uphold their religious freedom rights. Two days later, Supreme Court Justice Antonin Scalia, great religious freedom defender, suddenly and unexpectedly died.

Why are the Little Sisters of the Poor even in court in the first place? Especially the court system at different levels, reaching all the way to the Supreme Court, doing whatever they can to save their nearly two centuries long ministry to the poor from the threat of government overreach that threatens their services and institutions? Why would the government even do that?

Let’s review. (It’s stunning that we’re still in this situation more than four years after the federal fiat known as the HHS Mandate was issued by the administration’s Department of Health and Human Services, as a contraception delivery scheme slipped into the Affordable Care Act, known as Obamacare.)

For clarity and accessibility, this HHS Info Central has it all: graphics, charts, court challenges, case names and dates and outcomes or facts about pending hearings. It’s a ‘what’s wrong with this picture?’ snapshot of the HHS Mandate in Obamacare.

The Little Sisters of the Poor represent the most emblematic case. By far.

In November 2015…

the U.S. Supreme Court agreed to take up the case of the Little Sisters of the Poor, a group of Catholic nuns facing tens of millions of dollars in IRS fines because they cannot, according to their faith, include contraceptives in their employee health plan. This is the second time the Sisters have been forced to ask the Supreme Court for protection against the government’s HHS Mandate. The Court’s decision will finally resolve the crucial question of whether governmental agencies can, wholly without legislative oversight, needlessly force religious ministries to violate their faith.

Yes, that’s explicitly the situation.

The Little Sisters, who care for more than 13,000 of the elderly poor around the world, had no choice but to appeal to the Supreme Court due to the government’s refusal to exempt them from the HHS mandate, which is currently in its 9th unacceptable iteration. The mandate forces the Little Sisters to authorize the government to use the Sister’s employee healthcare plan to provide contraceptives and abortion-inducing drugs – a violation of their faith – or pay massive fines, which would threaten their religious mission. The Supreme Court entered a temporary order protecting the nuns in January, 2014, but the government has continued litigating, asking lower courts to remove that protection. (emphasis added)

“As Little Sisters of the Poor, we offer the neediest elderly of every race and religion a home where they are welcomed as Christ. We perform this loving ministry because of our faith and cannot possibly choose between our care for the elderly poor and our faith, and we shouldn’t have to,” said Sr. Loraine Marie Maguire, Mother Provincial of the Little Sisters of the Poor. “All we ask is that our rights not be taken away. The government exempts large corporations, small businesses, and other religious ministries from what they are imposing on us – we just want to keep serving the elderly poor as we have always done for 175 years. We look forward to the Supreme Court hearing our case, and pray for God’s protection of our ministry.”

They don’t want to be in court. They didn’t pick this fight. They’re about the last people in public service the government should be forcing to deliver contraception and morning after pills in their healthcare plans. And yet, here we are.

So with the Supreme Court taking on the case again, legal scholar Helen Alvare saw the opportunity to present a real challenge to the government’s claim or defense that it has a “compelling interest” in a mandate that burdens religious freedom, one of a two-prong test the Religious Freedom Restoration Act requires for government to enforce anything that violates so fundamental a protected liberty.

First, fleshing out the contents of the “compelling state interest” requirement will provide much-needed guidance in future religious freedom cases. Lawyers are accustomed to encountering compelling state interest analyses in due process and equal protection cases involving fundamental constitutional rights and suspect classifications. There are a significant number of cases interpreting the meaning of a “compelling state interest” in the areas of speech or racial discrimination. But there are fewer in the area of religious freedom…

Second, a “compelling state interest” analysis in the context of a mandate case would shed light on the government’s tendency – especially when contraception programs are concerned – to make extravagant claims without empirical foundation, while threatening the religious freedom of institutions providing unparalleled amounts of service to women. Governments at both the federal and state level have fallen into the habit of using contraception to “signal” their commitment to women’s rights. The facts on the ground, however, are much more complex.

Enter Women Speak for Themselves, which started as an open letter in response to high level women in government purporting to represent women’s rights and claims on services that really didn’t represent vast numbers of American women outside the Washington beltway and across the country. Helen Alvare was co-author of that letter with another lawyer, Kim Daniels. The open letter turned into a grassroots movement that has spread across the country, across demographics and age groups and backgrounds of women engaging these issues at their most local levels and on the national level, through media and initiatives that allow them to contribute to and change the conversation by sharing their lived experiences. It’s a remarkable range of stories from women speaking for women and their families and health and rights.

The Little Sisters are among those for whom they speak. These nuns don’t seek nor want the spotlight, but Pope Francis paid them a surprise visit last September while in DC during his US apostolic journey, and House Speaker Paul Ryan featured them as his guests among invited attendees – in a moment of irony – to President Obama’s final State of the Union Address in January.

Interestingly, the American Spectator noticed, and pointed out that Justice Sonia Sotomayor was the one who granted them a temporary injunction against punitive fines for not following the mandate, as they pursued permanent relief. Her vote will be needed again when the case is argued before the Supreme Court during Holy Week, in March 2016. Because if she comes down on the liberal side of reading religious freedom as applied to this case, and the court votes 4-4 in the absence of Justice Scalia, religious liberty will face a ‘calamity‘.

The Little Sisters would be forced to violate their faith by subsidizing the distribution of abortifacients, sterilization, and contraceptives to their employees or face ruinous IRS fines. The government exempts a wide variety of religious ministries from the contraception mandate. But the Obama administration insisted that this organization run by Catholic nuns, which has been providing free health care to elderly patients of every race and religion since 1839, is somehow not eligible for the usual exemption. Incredibly, the Tenth Circuit Court of Appeals ruled in favor of the government.

…Before Justice Scalia’s tragic death, there was a reasonable chance that the Little Sisters and six other organizations with which the Court consolidated their case might prevail.

Now, unless one of the four liberal justices — Breyer, Ginsburg, Kagan, and Sotomayor — casts an uncharacteristically nonpartisan vote, a 4-4 vote is all but inevitable.

For once, instead of Justice Anthony Kennedy holding the pivotal swing vote, it may rest with Sotomayor. Or Chief Justice John Roberts, who can work to sway the court in a couple of directions to avoid a calamity.

In the immediate aftermath of Justice Scalia’s untimely death, the Little Sisters of the Poor (with the help of technically proficient friends) released this new website making this whole story much pithier and easier to grasp than ever. Have a look, it’s all there.

Who they are:

The Little Sisters of the Poor have dedicated their lives to living with and caring for the elderly poor. They have been focused on service, not advocacy or policy, and, in this case, they’ve exhausted every option possible before going to court.

What this case is about:

After promising that the Little Sisters’ religious beliefs would be protected, the government created a new regulation requiring the Little Sisters to change their healthcare plan to offer services that violate Catholic teaching. But 1 in 3 Americans do not have a plan that is subject to the mandate HHS is fighting so hard to force the Little Sisters of the Poor to follow. Exxon, Chevron, and Pepsi — as well as other large corporations — are exempt from the mandate, because they never changed their plans and are grandfathered. And the government is not even requiring our own US military to provide these services through their family insurance.

The government is arguing that since it has offered to reimburse the costs of the services it wants the Little Sisters to provide, they should have no moral objection to offering them. The Little Sisters are saying this is not about money, but conscience, and whether they should be forced to change their healthcare plan to offer services they have a moral objection to when those services could be provided more effectively through the government’s healthcare exchange.

And what the solution may, or can, be.

There is an easy solution that protects the Little Sisters’ religious freedom and the right of the government to offer these services to women who want them. Rather than trying to force religious plans to offer these services, the better solution is for the government to provide these services through the ACA healthcare exchange to any employees who want them but can’t get them through employer plans.

The Little Sisters are not trying to prevent the government from providing these services, but object to the government’s insisting the Little Sisters provide them (especially since the government has already refused to ensure that those free services are provided to one in three Americans). Giving all women access to contraception through the healthcare exchange is a simpler and fairer way for the government to provide these services to more women while protecting the religious freedom of the Little Sisters, who never wanted this fight and just want to get back to caring for the elderly in need.

They can use all the help and advocacy they can get. Women Speak for Themselves is providing the vehicle, and the avenue. It’s up to people to drive it home.


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Jul 16

How you connect the dots determines the picture that emerges.

The recent chronology of events provides a startling snapshot of abortion extremism in this country.

The Supreme Court ruled on the Hobby Lobby lawsuit on June 30th, upholding free exercise rights established in the Constitution but more specifically, the bi-partisan Religious Freedom Restoration Act of 1993.

Then Democrats in Congress reacted with outrage. And a reactionary legislative bill.

“Women across the country and men are outraged by a decision by five Supreme Court justices that all of a sudden says your boss has an opportunity to decide for you what your health care choices are,” Sen. Patty Murray, the bill’s sponsor, told MSNBC’s Andrea Mitchell on Wednesday.

“That outrage is being transmitted to everyone, and I think we have a very good chance of rewriting the law so that the justices can’t take away women’s ability to make their own health care choices.”

So wait…what?

To reset, as politicians are fond of saying, it was “all of a sudden” that this administration announced in January 2012 that the Department of Health and Human Services (HHS) mandated certain drugs and procedures to be provided by employers in their health insurance coverage, decided by government with no choice for employers.

And now that such government overreach has been found excessive and in violation of RFRA, a Supreme Court decision is going to be rewritten in law? So “the justices can’t take away women’s ability to make their own health care choices”? When was the last time something so audacious was undertaken by politicians, even after the Supreme Court wrote abortion into law and swept away the separate and enumerated power to make laws for all 50 states in one fell swoop?

This is surreal. Even the liberal Washington Post did a fact check on congressional Democrats claims and found them demonstrably false, calling it all “overheated rhetoric.”

“Really, we should be afraid of this court. The five guys who start determining what contraceptions are legal. Let’s not even go there.”

That was House Democratic Leader Nancy Pelosi, with what WaPo called “a very odd statement”, which her office tried to walk back, though foot dragging along the way.

Then the WaPo article cited this quote:

“The one thing we are going to do during this work period, sooner rather than later, is to ensure that women’s lives are not determined by virtue of five white men. This Hobby Lobby decision is outrageous, and we are going to do something about it.”

— Senate Majority Leader Harry Reid (D-Nev.), remarks to reporters, on July 8

Spoken by a white man who wields power in the Senate with potentially less considered reasoning on a daily basis than justices on the Supreme Court on occasion. And by the way…

The Hobby Lobby decision was written by Justice Samuel Alito, joined by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas. That’s certainly five men, but Thomas is African American.

Reid’s office said he realized the mistake after he made it, and reverted to citing this decision as having been made by five men.

And so on. The fact checking goes on at the WaPo site.

Into the fray comes legal scholar Helen Alvare with her calm, clarifying and poised voice.

Prior to the 2012 HHS Mandate, there were no “runs” on birth control suppliers, nor were there demonstrations in the streets by women demanding free birth control. Nowhere was there observed a dearth of women willing to work for businesses informed by a religious conscience on matters of contraception or abortion.

This should come as a shock to those predicting the end of women’s freedom as a result of the Supreme Court’s decisions in Hobby Lobby and Conestoga Wood. It should also shock those protesters screaming about women’s ovaries on the steps of the Supreme Court. It should even shock the president of the United States, who took time away from his deliberations concerning Ukraine, Iraq, and Syria, to tweet cleverly against this win for religious freedom. And perhaps it will deliver the biggest shock to Supreme Court Justice Ruth Bader Ginsburg, whose dissent in Hobby Lobby spoke of the “harm,” the “havoc,” and the threat to women’s “ability to participate equally in the economic and social life of the nation” posed by the decision. Media reaction has been predictably similar.

Helen goes on to enumerate “myriad reasons that many women won’t be joining Justice Ginsburg in the panic room post-Hobby Lobby”, aptly describing the current environment.


Justice Ginsburg, like so many feminist activists of her generation, has a tendency to claim to speak for all women when she frames a grievance on women’s behalf. But relatively few women are actually affected by the majority opinion in Hobby Lobby. Poor women, and even women at several times the poverty level, already have free or subsidized birth control available from the state. Since 1970, they have been served by the National Family Planning Program (“Title X”).

She lists other ways access to birth control has been widely available to women for low or no cost.

Also, generally speaking, the Centers for Disease Control report that cost does not even make the list of “frequently cited reasons for nonuse” among the 11 percent of sexually active women not using contraception. A Guttmacher source claimed that only 3.7 percent of the total sample of women seeking abortions listed cost as a barrier to contraceptive usage.

And then…

There is also a sizable cohort of women who dislike (or even hate) the side effects of some forms of contraception—especially those of hormonal methods such as the pill, Depo-Provera, and IUDs. Ironically, these are the more costly methods that Justice Ginsburg and other activists hope the mandate will most promote. You can find women hating hormonal birth control for decidedly nonreligious reasons in books like Holly Griggs Spall’s Sweetening the Pill, or in articles on popular news sites.

Then there is the significant group of women who have suffered some alarming health effects from their birth control. Think of the 10,000 women suing Bayer Pharmaceuticals for blood clots or strokes related to the Yaz pill (Bayer has paid more than $1.6 billion in settlements so far), or the 3,800 women suing Merck & Co. for the blood clots, strokes and heart attacks related to the Nuva-Ring. Even birth-control cheerleaders like Vanity Fair, the Washington Post, and the New York Times acknowledge the serious or fatal effects of some methods for some women, or their role in increasing AIDS/HIV transmission. Not to mention the World Health Organization or the American Cancer Society, organizations that label some forms of the pill carcinogenic to some parts of the body, while noting that some forms might mitigate the risk of cancer in others.

Click on the link to this article for all the links Helen Alvare provides for these references. It’s outstanding. Here’s more:

What about women who are just sick and tired of the obsession with contraception and abortion—women starving for concrete policies allowing them to manage the costs of education and the demands of work, and also to marry and have kids?

This adds up to a lot of women who are not nodding their heads in agreement over the “you can take my free contraception out of my cold, dead hands” tone of the Ginsburg dissent, or other frenzied post-Hobby Lobby laments.

Read the whole article. It’s brilliant. And in her professorial mind, she sums up well:

The all-too-brief summary is as follows: when birth control and abortion separate sex from kids, non-marital sexual encounters increase as the perceived “risks” (children) appear to decline. Sex easily becomes the “price” of obtaining a romantic relationship, and “shotgun weddings” following a pregnancy disappear because women have the right of access to abortion. But because there are so many more uncommitted sexual encounters, and because contraception regularly fails, and because of continuing aspirations for children and relationships, cohabitation skyrockets, nonmarital births and abortions increase, and marriage is delayed or forgone (despite women’s fertility patterns and persistent desire for children). Single parenthood by women (and therefore poverty) becomes far more common.

It wasn’t just the “technology shocks” of the pill and abortion that shaped this marketplace; the law cooperated. The feminist legal establishment of the latter part of the twentieth century argued (and the Supreme Court agreed) that children imposed serious disadvantages on women. Contraception and abortion were thus achieved as constitutional rights. At the same time, leading feminist voices glamorized paid work and failed to pursue policies harmonizing motherhood with work outside the home. They played down differences between women and men, allowed the “ideal male worker” model to dominate women’s work lives, and let birth control and abortion policy constitute nearly the entire “women’s agenda.”

In sum…

We must clearly draw attention to the nature and workings of the marketplace of relationships today. Ask women to honestly confront the question whether it is to their advantage to participate according to this market’s current terms. In particular, point out the good of renewing female solidarity toward relinking sex, commitment, and children for the benefit of women, children, and men as well. Finally, vocally offer to cooperate on public and private policies enabling women to manage the demands and costs of education and employment, in harmony with their aspirations to marry and have children.

How I wish this work were as simple as parroting the simplistic claim that Hobby Lobby harms women. It isn’t. But the alternative—allowing Ginsburg to stand unchallenged—is unacceptable if we are to be fair to women and to preserve religious freedom for both women and men.

However, the Senate stayed in the “panic room” and worked on some draconian legislation. One was a bill to overturn the Supreme Court ruling on Hobby Lobby, upholding religious freedom. That one was called the “Protect Women’s Health from Corporate Interference Act.” another was written to undo a host of state abortion laws, as many as 200 of them nationwide, laws that set common sense limits like sex-selective abortions, fetal pain limits at five months (extremely liberal even at that duration), abortion clinic health regulation ordinances for the safety of women, informed consent laws for the sake of truly informed choice, and so on. That bill was called the “Women’s Health Protection Act”, which stood for the opposite of what it was called. One was called the ‘Not My Boss’s Business Act’, which is more true than drafters realized. It’s not the business of the employer to provide no-cost birth control pills and morning-after pills and other drugs mandated by the HHS. Especially when they’re not mandated to provide essential vaccinations, or many other preventive health services.

National Review Online got it right in this editorial. Unfortunate for longtime purists, but true today.

Democrats hold one thing — and one thing only — sacred, and that is abortion. Our diplomats may be murdered abroad, the rule of law may be grossly violated at home, the First Amendment may be written off as just another roadblock on the freeway to utopia, but abortion will always have for them a uniquely holy status — even if that means employing unholy methods to facilitate it. Thus Senator Richard Blumenthal of Connecticut has introduced a bill, cosponsored by a majority of Senate Democrats, that would purport to strip states of their ability to impose even the most basic of health and safety regulations on the grisly procedure, a bill that David French has rightly suggested should be titled the Kermit Gosnell Enabling Act of 2014.

How horrifying. But how aptly named.

Senator Blumenthal proposes to apply the Philadelphia model to the nation at large. Under his bill, states would have effectively no power even to ensure that abortions are performed by licensed physicians — surely the most minimal standard of medical responsibility that there is. Laws covering grisly late-term abortions would be forcibly overturned and fetal viability would be redefined according to the subjective whim of the abortionist. While the Democrats are bemoaning a fictitious war on women, their bill would provide federal protection to sex-selective abortions — the barbaric practice under which generations of girls have been decimated in such backward jurisdictions as China and Azerbaijan, a practice The Economist describes as “gendercide.” Laws restricting taxpayer funding of abortion would be overturned. Laws protecting the consciences of physicians who choose not to perform abortions would be overturned.

So here we are. The Senate voted on one of these bills Wednesday, and it failed in this first go-round.

Senate Majority Leader Harry Reid lamented that this pro-abortion bill only gained 56 of the 60 votes needed to invoke cloture (end debate), and promised another vote “before the year is out” (read: before the November elections). In other words, Sen. Reid is signaling to his pro-abortion allies that he will make the abortion-pill mandate a central issue of the fall elections.

That’s clarifying. That they had 56 votes today on something so draconian is a warning. More Americans are self-identifying as pro-life. But they and others may not realize how comprehensive this bill is in covering “extremism we’ve never seen before”, as an Alliance Defending Freedom legal counsel explained to me today. He said, flatly, that the bill covered even physician assisted suicide drugs under the terms of its wide and mandated coverage.

From the NRO piece:

Morally literate people, including those who generally support abortion rights, understand that abortion is fundamentally unlike anything else doctors are commonly called upon to do, and that it is morally significant in a way a tonsillectomy is not. People of good will may disagree to some extent about the moral significance of what is maturing in a woman’s womb — but it is not an ingrown toenail, and all the Senate proclamations in the world will not change that fact.

Right. Let’s be clear on the proclamations and the reality. Reactionaries are reaching for the ‘war on women’ declaration again, which denigrates and demeans women. Let them speak for themselves.

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Jun 30

Yes, the Obamacare HHS mandate does violate fundamental rights, said justices willing to state the obvious.

The Religious Freedom Restoration Act (RFRA), signed into law under President Bill Clinton after near unanimous approval in the House and Senate in 1993, applied a two-pronged test to any attempt by government to impose a federal law that substantially burdens citizens’ free exercise of their religion. The first test requires the government to show it has a ‘compelling interest’ in enforcing such a sweeping law, and the second is that government was seeking the ‘least restrictive means’ possible to achieve its ends. There’s no way this federal fiat issued in January 2012 could possibly pass either of those tests.

The Becket Fund for Religious Liberty dubbed the HHS mandate ‘a contraception delivery scheme’, which describes it well. As the court cases piled up across the country and spectrum of employers from non-profit organizations to for-profit business owners, academic institutions to healthcare providers (see Little Sisters of the Poor v. Sebelius), government lawyers could not defend their claims coherently.

Here’s the breakdown of current cases against the federal government when those arguments have been heard in courts at all levels. Monday’s Supreme Court decision on Hobby Lobby will impact a great number of others, and certainly scored a victory for religious freedom.

The U.S. Supreme Court granted a landmark victory for religious liberty today, ruling in the case of Burwell v. Hobby Lobby that individuals do not lose their religious freedom when they open a family business. The court ruled 5-4 in favor of David and Barbara Green and their family business, Hobby Lobby, ruling that they will not be required to violate their faith by including four potentially life-terminating drugs and devices in the company’s health insurance plan or pay severe fines.

“This is a landmark decision for religious freedom. The Supreme Court recognized that Americans do not lose their religious freedom when they run a family business,” said Lori Windham, Senior Counsel for The Becket Fund for Religious Liberty and counsel for Hobby Lobby. “This ruling will protect people of all faiths. The Court’s reasoning was clear, and it should have been clear to the government. You can’t argue there are no alternative means when your agency is busy creating alternative means for other people.”

The decision also has important implications for over 50 pending lawsuits brought by non-profit religious organizations, such as the Little Sisters of the Poor, which are also challenging the mandate. In two different respects, the Supreme Court strongly signaled that the mandate may be struck down in those cases too. First, it rejected the government’s argument that there was no burden on the Green’s religious exercise because only third parties use the drugs. Second, it held that the government could simply pay for contraception coverage with its own funds, rather than requiring private employers to do so.

“The handwriting is on the wall,” said Windham. “The Court has strongly signaled that the mandate is in trouble in the non-profit cases, too.”

The Court upheld a June 2013 ruling by the Tenth Circuit Court of Appeals protecting Hobby Lobby and the Green family from the Health and Human Services (HHS) mandate. That mandate requires Hobby Lobby and co-founders David and Barbara Green to provide and facilitate, against their religious convictions, four potentially life-terminating drugs and devices in the company’s health insurance plan. The Greens argued that the mandate substantially burdened their religious beliefs in violation of a federal law, the Religious Freedom Restoration Act.

In an opinion by Justice Alito, the Court stated:

The plain terms of RFRA make it perfectly clear that Congress did not discriminate . . . against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs. . . . Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.”

Justice Kennedy’s concurrence added: “Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion.”

There will be plenty to cover and analyze on this in the days to come. But here’s some good background worth reading, artfully written with accurate citations by creative thinker Tod Worner, news coverage as a play in three acts. Written just over two months ago, after oral arguments were presented in the Supreme  Court by plaintiffs and government lawyers in the HHS mandate cases justices would decide later, it ended with this:

Plaintiffs and defendant would rest. The Court would adjourn. The verdict will come to us in June.

Who is this young, promising man – this main character in our play? Perhaps we can know by considering him in each act: The Speech, The Executive Order, The Court Case. Perhaps.

This play, in three acts, is far from finished. There is more to be said and done. Will it end as a comedy? Or a tragedy? How will it end? How, indeed? We shall see. We shall see.

We now see how the Supreme Court ruled on this day in this pivotal case. We’ll see what comes next. Stay tuned.

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Apr 03

That headline fires the imagination.

The visit was the long overdue, according to the protocol and history of presidents meeting with popes over the decades. Former Ambassador Francis Rooney made that point in a USA Today op-ed column last October.

The past few years have seen cordial but cooling relations between the United States and the Vatican. Since President Obama took office, he has visited the Vatican just once, and the administration has demonstrated little more than a perfunctory interest in the Holy See’s diplomatic role in the world. This is a lost opportunity at a critical time for America. U.S. foreign policy has much to gain from its relationship with the Holy See, the governing body of the Catholic Church. No institution on earth has both the international stature and the global reach of the Holy See — the “soft power” of moral influence and authority to promote religious freedom, human liberties, and related values that Americans and our allies uphold worldwide.

Ambassador Rooney was my guest on radio to talk about all this, because he has unique insights into this relationship, and he feels strongly about the importance of maintaining strong US-Vatican relations.

His commentary deserves attention.

The United States and the Holy See remain two of the most significant institutions in world history, one a beacon of democracy and progress, the other a sanctum of faith and allegiance to timeless principles. Despite these differences between the first modern democracy and the longest surviving Western monarchy, both were founded on the idea that “human persons” possess inalienable natural rights granted by God. This had been a revolutionary concept when the Catholic Church embraced it 2,000 years ago, and was equally revolutionary when the Declaration of Independence stated it 1,800 years later.

The Church is one of the leading advocates and providers for the poor in the world, fights against the scourge of human trafficking, and advances the cause of human dignity and rights more than any other organization in the world. The Holy See also plays a significant role in pursuing diplomatic solutions to international predicaments. In 2007, for example, the Holy See helped secure the release of several British sailors who had been picked up by the Iranian navy. Its long-standing bilateral relations with Iran and the lack of such relations by the British and other western governments created an opportunity for successful intervention.

And more recently, the Holy See issued its diplomatic note concerning the civil war in Syria, calling for a “concept of citizenship” in which everyone is a citizen with equal dignity. It is urging the commissions which are working on a possible future constitution and laws to ensure that Christians and representatives of all other minorities be involved. This immediately helped place a spotlight on the plight of Christians and the ongoing exodus of all non-Muslims from most Middle East countries for the last 30 years. The power and influence of the Holy See is often underestimated. A benevolent monarchy tucked into a corner of a modern democracy, the Holy See is at once a universally recognized sovereign representing more than a billion people (one-seventh of the world’s population) — and the civil government of the smallest nation-state on earth. It has no military and only a negligible economy, but it has greater reach and influence than most nations. It’s not simply the number or variety of people that the Holy See represents that gives it relevance; it’s also the moral influence of the Church, which is still considerable despite secularization and scandals.

The Holy See advocates powerfully for morality in the lives of both Catholics and non-Catholics, and in both individuals and nations. One may disagree with some of the Church’s positions and yet still recognize the value — the real and practical value — of its insistence that “right” should precede “might” in world affairs. At its core, the Catholic Church is a powerful and unique source of non-coercive “soft power” on the world stage — it moves people to do the right thing by appealing to ideals and shared values, rather than to fear and brute force. America’s foreign policy is much more likely to succeed with the support of the Holy See.

His book The Global Vatican elaborates on that, and I was interested in his recently expressed optimism at seeing the president planning a visit with Pope Francis on his travels last week. I asked how he saw that visit, given conflicting reports on what the two leaders talked about in private, but the certainty that they agreed on some mutual goals while differing on certain principles. Ambassador Rooney responded “Well, we are, after all, a people of hope.”

What did they talk about? In advance, big media speculated the two would focus on points of agreement, on economic inequality and immigration, human trafficking and humanitarian relief. But that issue agenda was laden with problems some media ignored, especially in the areas of the administration removing the US bishops’ human trafficking relief aid, and the humanitarian relief provided by the US being tied to ‘reproductive justice.’

I’m always interested in the facts and the truth and the basics, so I wanted to cut through the spin. Fortunately, we have more of an idea of what happened between the pope and the president than we could expect from such a high level, closed door meeting. Top Vatican watcher Sandro Magister wrote this:

In his meeting with Barack Obama a few days ago, Pope Francis was not silent on what divides the American administration from the Church of that country on weighty questions like “the rights to religious freedom, life, and conscientious objection.” And he stressed this in the statement issued after the discussion.

Jorge Mario Bergoglio does not like direct conflict, in public, with the powerful of the world. He lets the local episcopates take action. But he does not conceal his own disagreement, and he is careful to maintain his distance. In the photos of his official meetings he poses with a stern expression, unlike the exaggerated smiles of his counterpart of the moment, in this case the head of the world’s greatest power.

Nor could he do otherwise, given the radically critical judgment that Pope Francis fosters within himself regarding today’s worldly powers.

It is a judgment that he has never made explicit in a complete form. But he has offered many glimpses of it. For example, with his frequent references to the devil as the great adversary of the Christian presence in the world, seeing him at work behind the curtains of the political and economic powers. Or when he lashes out – as in the homily of November 18, 2013 – against the “sole form of thought” that wants to enslave all of humanity to itself, even at the price of “human sacrifices,” complete with “laws that protect them.”

Apparently, these issues came up, diplomatically, in that meeting.

In their first face-to-face meeting, Pope Francis reiterated the Catholic Church’s concerns with President Barack Obama’s policies on abortion, conscience rights, and freedom of religion.

A source familiar with the talks told LifeSiteNews that the Vatican press release on the meeting was “remarkably forthright” in emphasizing the fact that the pope raised these issues with the president.

According to the press release, the pope launched a discussion with the American president about the proper role of church and state, raising “questions of particular relevance for the [Catholic] Church in that country.” These included “the exercise of the rights to religious freedom, life, and conscientious objection,” according to the Vatican.

The 52-minute-long meeting marked Obama’s first audience with Pope Francis. The divide between the Obama administration and the Catholic Church has deepened since his meeting with Pope Benedict XVI in 2009, with broiling arguments over the president’s promotion of abortion-on-demand, same-sex “marriage,” and the HHS contraceptive/abortifacient mandate.

Just to note, a 52 minute meeting with Pope Francis by a head of state is almost half an hour longer than the usual.

Then it ended with the cordial exchange of gifts.

Pope Francis presented President Obama with a copy of his apostolic exhortation Evangelii Gaudium (“The Joy of the Gospel”), which criticizes some public figures who attempt to marginalize the pro-life message by presenting it as “ideological, obscurantist, and conservative.”

“This defense of unborn life is closely linked to the defense of each and every other human right,” Pope Francis wrote. “It involves the conviction that a human being is always sacred and inviolable, in any situation and at every stage of development.”

The president said he may look at it. “You know, I actually will probably read this when I’m in the Oval Office,” Obama responded, “when I am deeply frustrated, and I am sure it will give me strength and will calm me down.”

A source of hope.

For his part – perhaps signaling a wish for a new springtime with the church – Obama gave Francis a collection of seeds used in the White House garden. The kicker, however, was the chest they came in: custom-made and engraved with the occasion and date, the case was fashioned of wood from the US’ first cathedral, Baltimore’s Basilica of the Assumption, which the Jesuit founder-Bishop John Carroll and Benjamin Latrobe – the future architect of the Capitol – designed as a monument to religious freedom in the American experiment. Against the backdrop of the Obamacare contraceptive mandate which has roiled the Stateside church for going on three years, the significance is rather rich.

With religious freedom being at stake in the two HHS mandate lawsuits before the Supreme Court, one can only hope the president does follow through a read Evangelii Gaudium in the Oval Office or anywhere, and take to hear the message Pope Francis so incisively delivers in that document. The president admires the pope. Maybe he’ll consider his teaching.

But as Ambassador Rooney repeated by the end of an hour’s discussion of ‘The Global Vatican’ and the importance of US-Vatican relations, “we remain a people of hope.”

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Mar 31

It’s not really news anymore that signup for healthcare as promised and touted by the president has hit another glitch. But that it did on deadline day generated at least some headlines.

Like Politico’s. The bottom line is more the story than the body of the story.

Public opinion polls have shown many Americans are still opposed to the law. A new Washington Post-ABC poll released Monday showed approval rising slightly, with 49 in favor and 48 opposed, but many other surveys have found more skepticism.

So, fair assessment is that we’re about evenly split over Obamacare. Allegedly.

The issues I have with it relate to life, true healthcare coverage and accessibility, and conscience rights, as regular readers here know. Those have been highlighted in the HHS mandate lawsuits over the past two years.

Here’s another detailed rundown of what’s wrong with the Affordable Care Act, which few people have actually read.

Once the Affordable Care Act became law in March 2010, the two chambers of Congress have held diametrically opposed views. The House, under Republican control since 2011, has voted many times to repeal the entire act; the Democratic-controlled Senate has resisted changes.

The Catholic bishops’ conference has not joined in either agenda. Supporters of national efforts to achieve universal health coverage for almost a century, the bishops have urged specific reforms in accord with the moral principles they articulated during consideration of the A.C.A. The bishops support basic, life-affirming health coverage for everyone, including immigrants; compliance with longstanding federal policies on abortion funding; and respect for rights of conscience.

The A.C.A. remains deficient in these areas. The bishops have urged Congress to pursue comprehensive immigration reform, including reform of the way our health laws treat immigrant families. On abortion issues—both federal funding and conscience rights—the implementation of the A.C.A. over four years has brought its defects into sharper focus.

One barrier to progress on the act’s problems regarding abortion is that many, including some Catholics, are confused about those problems or deny that they exist. Here, then, are the abortion-related problems the bishops’ conference finds in the A.C.A.

Click on that link.  Read the article. Rich Doerflinger counts the ways.

1) Under existing federal jurisprudence, federal funds appropriated by the A.C.A. are available for elective abortions.

He doesn’t just make the claim, he backs it up. Do read on, especially about the protections put in place and upheld for decades under the Hyde Amendment. It’s very instructive.

2) The act violates the policy of all other federal health programs by using federal funds for health plans covering elective abortions.

Here’s just a snip from that section:

The A.C.A. forbids insurers to inform consumers about their abortion coverage except as part of the long list of benefits provided to those already enrolling. It also forbids them to reveal how much of the enrollee’s premium will go into the separate account for abortions. Thus a common impression that enrollees will write a “separate check” for abortion, which pro-life dissenters might try refusing to sign, is apparently false—the funds are separated at the insurer’s end. Some states have said that every health plan on their exchange will cover elective abortions.

This is troubling in light of polling commissioned by the bishops’ conference during consideration of the A.C.A. Most survey respondents opposed measures that require Americans to support abortion with their tax dollars or their premiums; 68 percent said that if the choice were theirs they would not want abortion in their health coverage. On each question, women gave stronger pro-life responses than men. The majority of American women who oppose abortion coverage will now often face a sad dilemma: Either pay for abortions anyway or have greatly reduced options when looking for a health plan to meet their families’ needs.


3) The A.C.A. lacks important conscience protections.

Most of this is contained within the HHS mandate, a ‘birth control delivery scheme’ objected to by a great number of Americans for many reasons, most enumerated in those lawsuits linked above. But note this, which isn’t well known (along with most everything else in Doerflinger’s article):

More broadly, the final version of the A.C.A. deleted an important conscience provision from the original House-passed bill, which incorporated the Hyde/Weldon Amendment that has been part of Labor/H.H.S. appropriations bills since 2004. That law withholds Labor/H.H.S. funds from a federal agency or program or a state or local government that discriminates against health care entities that refuse to provide, refer for, pay for or provide coverage of abortion. Like the Hyde Amendment on funding, the Hyde/Weldon policy on conscience does not govern funds appropriated by the A.C.A.

And then:

4) Finally, it has been said that federal judges in Virginia and Ohio have ruled there is no abortion funding in the A.C.A. That is not quite true.

He explains. And then, the bottom line:

The great majority of American men and women do not want to support abortion with their taxes or health premiums. A recent poll of obstetrician-gynecologists showed that only 14 percent perform abortions, and the latest abortion statistics show abortion rates and the number of abortion providers at their lowest since 1973. To all but the most committed enthusiasts for abortion, that tipping point cannot arrive too soon.

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Mar 28

In a discussion about Tuesday’s oral arguments on two cases challenging the government’s coercive mandate, one legal counsel said “it was really oral arguments“.

The courtroom was lively and the justices engaged. A couple of pieces that pinpoint key moments to light.

Kathryn Lopez aptly refers back to the ‘parade of horribles‘ to describe the women justices’ engagement of the ‘what ifs’ involved in this case. Government attorneys tried to use it in their arguments.

One of the expected themes — because it was in the Department of Justice’s brief — during the Hobby Lobby/Conestoga Wood case before the Supreme Court yesterday was the idea of a parade of horribles that would come should the companies win their religious-liberty claim. Ed Whelan has written about this here…in response to the brief. The way the argument goes is that if you let employers opt out of abortion-pill and contraception coverage next employers are going to claim religious objections to sexual-harassment laws, minimum-wage laws, Social Security taxes, and vaccine coverage.

As Ed points out:

“The fact that the Obama administration has provided an exemption from the HHS mandate for houses of worship and the so-called “accommodation” rule for religious nonprofits shows that it recognizes that the HHS mandate substantially burdens religious exercise. Nothing comparable exists for DOJ’s examples.”

The “burden” test is essential to these cases and the whole HHS birth control delivery scheme. The Religious Freedom Restoration Act (known by shorthand as RFRA) which passed with full bipartisan support under the Clinton administration, holds a two-pronged test, that government cannot restrict religious freedom unless it produces convincing evidence of a compelling reason to do so,  and it is pursuing that action by the least restrictive means possible.

The government cannot pass that test on either count on the HHS birth control delivery mandate. Their attorneys have failed to produce anything approaching convincing evidence that they can pass that test, time and again, in the many lawsuits across the country over the past two years.

But here’s the real money moments in the dramatic exchanges in the high court Tuesday. Justice Anthony Kennedy was grilling the government’s attorney on whether allowing this mandate to go forward could extend government powers to authorize the compulsion to pay for abortions on a broader scale, since government attorneys had at that point conceded that IUDs can be abortifacents, and IUDs were part of the mandated coverage. The US Solicitor General (Don Verrilli) objected, saying current law “is to the contrary.”

But Kennedy persisted, saying the government was making a legal case that would permit that.

Verrilli continued to resist Kennedy’s simple hypothetical question, treating it as though he could not answer it unless there were really such a law on the books…

And then the chief justice intervened:

Chief Justice Roberts: I’m sorry, I lost track of that. There is no law on the books that does what?

Verrilli: That makes a requirement of the kind that Justice Kennedy hypothesized. The law is the opposite.

Roberts: Well, flesh it out a little more. What—there is no law on the books that does what?

Verrilli: That requires for-profit corporations to provide abortions.

Pay attention to this line of questioning.

Justice Kennedy began to speak at this point, and Chief Justice Roberts cut him off by pursuing Verrilli like a hound who has treed a raccoon:

Roberts: Isn’t that what we are talking about in terms of their religious beliefs? One of the religious beliefs is that they have to pay for these four methods of contraception that they believe provide abortions. I thought that’s what we had before us.

What Kennedy treated as hypothetical, in other words, Roberts pointed out is not hypothetical at all. It’s actual. It is this case. Hobby Lobby is an abortion case (emphasis added), and at this moment in the argument, Roberts may just have sewn up Kennedy’s vote. Not because Kennedy is morally perturbed by abortion itself; I doubt he is, much. But because he is probably very concerned, and rightly, with a regulatory mandate that forces people to violate their religious beliefs about the sanctity of life by providing and paying for abortions. Roberts spoke circumspectly about the employers’ “religious beliefs” about the drugs and devices that cause abortion, and it was right for him in this context not to say more. But they do cause abortion, and so this is, in a way that should be very important to Justice Kennedy, an abortion case.

Conclusion at this point:

Yes, this is an abortion case, and a religious freedom case, and a government-overreaching-its-authority case.

The Supreme Court will rule in June.

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Mar 24

Or put bluntly, the government mandate to violate your conscience.

It’s as simple as that. No matter how much spin has been spun, and there has been much, it comes down to this.

Do Americans enjoy religious-liberty protections when they are at church, or do Americans enjoy religious-liberty protections when they are Americans?

That’s it. The Supreme Court hears oral arguments this week on that question.

Hobby Lobby is owned by a trust controlled by the Green family, observant Christians who make a point of carrying their faith into the marketplace, stocking Christian products and closing their stores on Sundays. They refuse to comply with parts of the Affordable Care Act’s contraception mandate, specifically the provision of products that they regard as actual or potential abortifacients, including intrauterine devices and the so-called morning-after pill, both of which can function to prevent an embryo from implanting in the uterus and thus surviving. Whether these products are properly regarded as abortifacients is a matter of some controversy, but the relevant question is not a technical one about the mechanisms by which these drugs and devices prevent pregnancy. Federal law protects religious liberty with no proviso that matters of conscience must be argued to the satisfaction of the American College of Obstetricians and Gynecologists before legal protections kick in.

Now here’s the money paragraph, the important explanation of the whole thing that helps understand what’s at stake in the claims to protection against government encroachment of religious freedom and conscience rights. Those claims are grounded in the Constitution and RFRA, the Religious Freedom Restoration Act.

While the issue is at heart a constitutional one, Hobby Lobby is not in this instance appealing to the First Amendment but rather to the Religious Freedom Restoration Act, which was passed by a unanimous House, a near-unanimous Senate, signed into law by President Bill Clinton, and certified as constitutional as applied to the federal government in a 2006 Supreme Court decision. The act sets a high standard that the federal government must meet when it burdens the free exercise of religion and was enacted in response to court decisions that had narrowed First Amendment protections. It is intended to reinstate the “Sherbert test,” which holds that in a case in which the involved parties hold a sincere religious belief and the federal government places a substantial burden on the exercise of that belief, then the federal government must both prove a “compelling state interest” in burdening religious exercise and — perhaps most important in this case — demonstrate that it has sought to secure that compelling interest in the least restrictive fashion.

That’s a two-pronged test the government cannot possibly pass in imposing the HHS mandate.

While it is hardly obvious that there is a compelling state interest in subsidizing access to contraception, which is widely available and inexpensive (a woman who required an emergency dose of Plan B once a quarter would still spend more annually on toothpaste), it is entirely implausible that the least restrictive way of achieving that subsidy is a nationwide legal mandate for coverage of those products at no out-of-pocket expense by every employer in the country offering health insurance — and the federal government will penalize them if they don’t offer it.


Whatever the federal government might have done differently, the express purpose of the Religious Freedom Restoration Act is to prevent it from doing what it has done in the Affordable Care Act: ride roughshod over the free exercise of religion whenever doing so proves politically convenient.

The case is about more than the Green family and Hobby Lobby. There are in fact 94 related cases involving 300 plaintiffs representing nearly half the states, from Southern Baptists such as the Greens to Catholic nonprofits and Amish cabinetmakers. The objections to the ACA mandate are neither narrow nor sectarian.

Split decisions from the appellate courts all but guaranteed a Supreme Court hearing of the issue, which will begin tomorrow. The decision will be only incidentally about what kind of health insurance we have — it will be about what kind of country we have.

So here we go.

Whatever the federal government might have done differently, the express purpose of the Religious Freedom Restoration Act is to prevent it from doing what it has done in the Affordable Care Act: ride roughshod over the free exercise of religion whenever doing so proves politically convenient.

The case is about more than the Green family and Hobby Lobby. There are in fact 94 related cases involving 300 plaintiffs representing nearly half the states, from Southern Baptists such as the Greens to Catholic nonprofits and Amish cabinetmakers. The objections to the ACA mandate are neither narrow nor sectarian.

Split decisions from the appellate courts all but guaranteed a Supreme Court hearing of the issue, which will begin tomorrow. The decision will be only incidentally about what kind of health insurance we have — it will be about what kind of country we have.

This is about that, and more.

The United States is one of the most religiously diverse nations on earth. People of a vast array of traditions of faith live here in a harmony that would have been unthinkable in most of the world for most of human history.

One of the ways America has fostered and protected this diversity is by nurturing a robust understanding of religious liberty that includes granting certain exemptions to people who need them in order to be true to their religious faith. Religious exemptions protect people in situations where legislative or executive acts might otherwise unnecessarily force them to violate their consciences…

The United States is one of the most religiously diverse nations on earth. People of a vast array of traditions of faith live here in a harmony that would have been unthinkable in most of the world for most of human history.

One of the ways America has fostered and protected this diversity is by nurturing a robust understanding of religious liberty that includes granting certain exemptions to people who need them in order to be true to their religious faith. Religious exemptions protect people in situations where legislative or executive acts might otherwise unnecessarily force them to violate their consciences.

In a free, representative republic, it’s hard to imagine why or how government acts would possibly force citizens to violate their consciences. Surely, that cannot stand.

The reason that government is likely to lose in the Hobby Lobby case, however, is that there are so many ways for the government to distribute these drugs—on its own exchanges, through the Title X family-planning program and by cooperating with willing distributors—that do not require the forced participation of conscientious objectors. That presumably is why an effort is now being made to cut back on the robust conception of religious freedom that once united Americans of all faiths and even unbelievers.

The Establishment Clause argument should also fail. That provision exists to prevent the establishment of a national religion or the granting of superior standing to a religion that happens to have the support of most citizens. It would be perverse for a court to use it to punish the laudable practice—dating all the way back to George Washington’s decision to excuse Quakers from his army—of accommodating the free exercise of religion by protecting people whose religious beliefs or practices are not shared by the majority from being compelled even in the absence of a compelling reason to violate their consciences.

The two-pronged test of proving a compelling government interest in pursuing an edict that requires citizens to violate their religious beliefs, and then proving that the means of doing so constitute the least restrictive means possible to do so, is a test the government cannot pass with the HHS mandate, without the help of an activist court.

Oral arguments begin. The court ruling will come later. Stay tuned.

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Mar 03

With over ninety lawsuits in courts for over two years contesting the government’s violation of the Constitution and the Religious Freedom Restoration Act, this one may be emblematic.

The Little Sisters of the Poor, and order of nuns founded in the 1800′s to care for the elderly sick and the poor, have to go to court again to fight for the right to continue to do so. As Congressman Jeff Fortenberry told me on radio Monday, “they were already providing affordable care!” And doing so long before the president’s law by that name required compliance in providing drugs and services that violate consciences.

Understand the basics here, because the Little Sisters’ case starkly reveals them.

Under RFRA [the Religious Freedom Restoration Act], the government must establish it has a compelling interest to infringe upon the religious liberty of its citizens. The HHS mandate asserts that the government has a compelling interest to require that all employers provide health insurance that covers contraception, sterilization, and abortion-inducing drugs. The government claims such coverage is on par with preventive medical practices such as immunizations and cancer screening.

From a medical perspective this is ludicrous. Preventive medicine prevents disease and maintains health. Pregnancy is not a disease and fertility is not a disorder.

Full stop here. Because enough said. The Little Sisters – and all the other groups pursuing lawsuits to defend their right to continue doing their work and providing the healthcare coverage they were providing and applying their principles and moral beliefs to their work and services – are not trying to change what has already been easy access to birth control and morning-after pills. They’re trying to preserve their rights as they stood before the HHS mandate came out of nowhere and required coercion in a birth control delivery scheme that made these drugs part of the federal healthcare plan, masquerading as ‘women’s preventive health’.

And though this is an ‘aside’ to the main argument of government coercion to violate consciences, the HHS slipping in these drugs under that umbrella term bears scrutiny. So consider this aside:

Rather than maintaining health, contraception takes a perfectly healthy reproductive system and renders it non-functional. The methods used to achieve this state of sterility are fraught with health risks. The government’s own information page on contraceptives indicates they are associated with substantial risks including blood clots, breast cancer, cervical cancer, and liver cancer. Recent studies have demonstrated the use of hormonal contraceptives double the risk of transmission of the AIDS-inducing HIV. Women who use hormonal contraceptives increase their risk of the most aggressive form of breast cancer by at least 100 percent. The increase in breast cancer risk is greater the younger women are when they begin using hormonal contraceptives.

Some women choose to accept these risks and utilize hormonal contraception in order to be sexually active and avoid pregnancy. This is an elective lifestyle choice and not a necessary medical intervention. The government should have no more interest in whether or not women are accessing contraception to avoid pregnancy than whether or not women are using Lasik to improve their vision or using Botox to get rid of their wrinkles.

So, getting back to the two-prong test of RFRA, the first one was just addressed, that the government does not have a compelling interest to infringe on the religious liberty of its citizens.


Even if we were to allow that there is some government interest in ensuring all women have access to highly risky elective medical procedures, the HHS mandate fails to meet the second demand of RFRA that the government utilize the least restrictive means to satisfy its compelling interest. Since 1970, the federal government has funded contraception through a program known as Title X. When the HHS mandate was first introduced, supporters were quick to claim that virtually every American woman utilized contraception and supported their assertions with data from the Guttmacher Institute. There were many problems with their analysis of the Guttmacher Institute statistics, especially when it concerned the number of Catholic women utilizing contraceptives, but the information did indicate that access to contraception is not a problem for American women. Title X funding of women’s health clinics is working as intended. Therefore, the push to force all insurance policies to include coverage for contraception is addressing an access problem that does not exist. The least restrictive course of action would be to continue the current Title X funding mechanism and avoid infringement upon anyone’s religious liberty.

On March 25, the U.S. Supreme Court will begin hearing oral arguments in two key cases challenging the constitutionality of the government’s HHS mandate.

In the meantime, all sorts of injunctions have been granted to employers and organizations to stave off the harsh impact of this mandate until it’s settled by the high court. That includes the New Year’s Eve injunction granted the Little Sisters by Supreme Court Justice Sonia Sotomayor. Followed by the full Supreme Court ruling continuing that relief until the 10th Circuit took up the case again.

Now the Little Sisters have gone back before the 10th Circuit Court of Appeals, seeking justice.

“We are thrilled the Supreme Court temporarily protected the Little Sisters from having to violate their conscience or pay crippling IRS fines. We are hopeful the Tenth Circuit will give them more lasting protection,” said Mark Rienzi, Senior Counsel at the Becket Fund for Religious Liberty and lead counsel for Little Sisters of the Poor. “The federal government is a massive entity that has lots of ways to deliver contraceptives to people–it doesn’t need to force the Little Sisters to participate.”

The injunction from the Supreme Court provided the Little Sisters short-term protection from being forced to sign and deliver the controversial government forms authorizing, ordering, and incentivizing their health benefits administrator to provide contraceptives, sterilization, and drugs and devices that may cause early abortions. Instead, the Little Sisters simply had to inform HHS of their religious identity and objections.

In a USA Today column in the midst of this ongoing struggle, Kirsten Powers – who believes in government mandated birth control delivery on the face of it – called on the administration to give the Little Sisters of the Poor a break.

This is a very strange case. The government has argued that signing the form is meaningless because the nuns’ insurer, the Christian Brothers Employee Benefits Trust, is exempt from the mandate. Yet it has fought the Sisters all the way to the Supreme Court to make them sign it. What’s going on?

The government’s brief to the Colorado court provides a clue. It drips with contempt. The Obama administration finds the nuns’ complaint “implausible” and alleges that the Sisters are “fighting an invisible dragon.” Oh, you silly, simple-minded nuns! Just stop imagining things and do what the government tells you.

The Sisters reject the government’s contention that the form does nothing, as did all six lower courts to consider the claim in other church plan cases. They are wise to be leery of Uncle Sam’s intentions.

The dismissive tone of the administration’s brief is consistent with its overall attitude toward religious liberty issues throughout the implementation of the contraception mandate. Health and Human Services Secretary Kathleen Sebelius never bothered to consult the Justice Department to determine whether the mandate was consistent with the Constitution and the Religious Freedom Restoration Act, despite requests from Congress.

When asked whether she consulted the U.S. Conference of Catholic Bishops over their complaints about an effort to find an “accommodation,” Sebelius said she didn’t. Considering it was the primary group complaining, why not?

These are questions I’ve been asking for the past two years, and few in big media have bothered to. I’m glad Powers asked.

The administration’s indifference to religious liberty complaints is not limited to issues arising from Obamacare. In 2011, the government made the argument in Hosanna-Tabor v. the Equal Employment Opportunity Commission that churches do not have special rights under the First Amendment but merely association rights, like unions. Justice Antonin Scalia called this “extraordinary,” and Justice Elena Kagan said it was an “amazing” claim. Another word that comes to mind is “disturbing.” A unanimous court rejected the administration’s claim.

However, nine days after that unanimous Supreme Court ruling rejected the administration’s claim to the right to infringe on religious freedom in Hosanna-Tabor, the HHS mandate was issued. This is, in a word, relentless.

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