HHS mandate rolled back, Little Sisters exempted, government overreach revealed

“The new rule is a victory for common sense.”

Last Friday, the Trump administration issued new HHS mandate interim rules finally giving relief to the Little Sisters of the Poor and many other religious and faith based groups and institutions burdened by the Obama era mandate to provide contraception in their health care plans, or pay prohibitively heavy fines if they didn’t.

They have been in courts on all levels in many states and at the federal level for the past five years secure protection from coercion to violate their consciences over a ‘contraception delivery scheme’ made up under the guise of ‘women’s preventive health care’. The only thing it prevented was a healthy woman’s natural reproductive cycle.

Becket Law has represented many or most of those cases, and provided ‘HHS Central’ info updates for years. Friday’s new rule changes provided the latest welcomed victory in a string of many.

The rule aligns with the Supreme Court’s unanimous ruling last year protecting the Little Sisters in Zubik v. Burwell protecting the Little Sisters, which says the government cannot fine the religious groups for following their faith. The contraceptive mandate issue went to the Supreme Court five times, and each time the Supreme Court ruled in favor of protecting religious groups.

 

“The new rule is a victory for common sense,” said Mark Rienzi, senior counsel with Becket. “The previous administration pursued a needless and divisive culture war. It was always ridiculous to claim you need nuns to give out contraceptives. This new rule shows that you don’t.”

That it took a government administrative rule to override a previous administrative rule to prove the obvious is a sign of how far the dictatorship of relativism has reached in its grasp of public consciousness, or at least the control of public opinion by government, media, social media and entertainment media, all of which work together often to advance based more on ideology than science and fact.

For facts, this is the best one stop source I’ve found so far, but I’m a footnote reader and you have to read the footnotes to appreciate the scope of research it covers.

In brief, it counters everything the Obama administration claimed in the original ‘federal fiat’ known as the HHS mandate, based on nothing demonstrable.

1) The HHS Mandate is ineffective, even counterproductive.

2) HHS has no meaningful data to support its claims that free contraception causes
improved women’s health.

3) The mandate is unconstitutional.

4) The Mandate is misleading and irresponsible regarding women’s health.

5) The Mandate is demeaning to women…

Each of those points has sub-points, deeply grounded in footnoted source documents, so everyone has access to the full truth to engage in robust public debate.

Becket Senior Counsel Mark Rienzi declared:

“It should be easy for the courts to finalize this issue now that the government admits it broke the law. For months, we have been waiting for Department of Justice lawyers to honestly admit that fact, like the President did in the Rose Garden five months ago,” said Rienzi. “Now that the agencies admit the mandate was illegal, we expect the leadership of the Department of Justice will cooperate in getting a final court resolution so the Little Sisters can stop thinking about lawyers and mandates and return to spending all their energies caring for the elderly.”

 

With an interim rule now in place, the ongoing court battles between religious groups and the federal government may be resolved soon. The interim rule acknowledges that the earlier mandate violated the Little Sisters’ religious liberty and that there are many other ways to obtain contraceptives.

And that’s another statement of the obvious. The Little Sisters of the Poor, and all the other groups defending their rights to religious liberty guaranteed under the First Amendment and the Religious Freedom Restoration Act, have not intended, nor tried, to take birth control away from women nor keep women from obtaining it in the myriad ways available to them before the Obama HHS mandate was issued 2011. (The fact sheet tells the fuller background story.)

That’s common sense. So is this comment from a woman following coverage I provided on radio Friday with a Becket Legal Counsel about the new HHS rules restoring religious freedom and conscience rights to the Little Sisters and others by exempting them from having to provide birth control and other potentially abortifacent drugs, under the guise of health care.

I’ll never understand why insurance companies want to pay for medication that is not used to treat a disease or disorder but is given to try to “fix” something that works perfectly! Most contraceptives are elective and should not be covered. Women take them because they want to, not because they are sick.

Another said this, echoing many such expressions over the past five to six years.

What about the struggling mother who needs blood pressure meds, antibiotics, or other medication? Why mandate free birth control and no other meds? It doesn’t treat illness, but is a carcinogen that thwarts nature. There were just two reasons for the HHS mandate: population control and the elimination of freedom of conscience.

As courts have ruled, and the administration has now agreed, government had no right to compel people, groups, organizations or institutions to provide those birth control and emergency birth control medications. And as Mark Rienzi echoed, the new interim rule was a victory for common sense.

High Court on Big Government v. Little Sisters

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.

Supreme Court surprise move in Little Sisters case

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.

Little Sisters have new champions, defenders in court

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.

 

Big Government vs. Little Sisters: a breach too far

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.

However…

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.

Prejudice as strong as ever?

It takes many forms, and it snakes its way through cultural relativism. But it’s alive and very active.

The topic is probably worth a book, certainly a long article or series. For purposes of a manageable blog post for now, let’s look at some recent events in light of other related events and see how the pieces fit together to form a picture.

Fr. Robert Barron is the force and the voice behind the Catholicism Series. So he’s an important voice to listen to when he speaks out about some recent anti-Catholic outbursts, and why they should bother everyone.

Last week two outrageously anti-Catholic outbursts took place in the public forum. The first was an article in U.S. News and World Report by syndicated columnist Jamie Stiehm. Ms. Stiehm argued that the Supreme Court was dangerously packed with Catholics, who have, she averred, a terribly difficult time separating church from state and who just can’t refrain from imposing their views on others. Her meditations were prompted by Justice Sonia Sotomayor’s granting some legal breathing space to the Little Sisters of the Poor, who were objecting to the provisions of the HHS mandate. As even a moment’s thoughtful consideration would reveal, this decision hadn’t a thing to do with the intrusion of the “church” into the state, in fact just the contrary. Moreover, the appeal of American citizens (who happen to be Catholic nuns) and the decision of a justice of the Supreme Court in no way constitute an “imposition” on anyone. The very irrationality of Stiehm’s argument is precisely what has led many to conclude that her column was prompted by a visceral anti-Catholicism which stubbornly persists in our society.

Clearly and correctly stated. This is true.

The second eruption of anti-Catholicism was even more startling. In the course of a radio interview, Governor Andrew Cuomo blithely declared that anyone who is pro-life on the issue of abortion or who is opposed to gay marriage is “not welcome” in his state of New York. Mind you, the governor did not simply say that such people are wrong-headed or misguided; he didn’t say that they should be opposed politically or that good arguments against their position should be mounted; he said they should be actively excluded from civil society! As many commentators have already pointed out, Governor Cuomo was thereby excluding roughly half of the citizens of the United States and, presumably, his own father, Mario Cuomo, who once famously declared that he was personally opposed to abortion. Again, the very hysterical quality of this statement suggests that an irrational prejudice gave rise to it.

This needs to be addressed and confronted. Fr. Barron takes us back through historical anti-Catholicism and it’s good to remind Americans of what it was.

But…

What is particularly troubling today is the manner in which this deep-seated anti-Catholicism is finding expression precisely through that most enduring and powerful of American institutions, namely the law. We are a famously litigious society: The law shapes our identity, protects our rights, and functions as a sanction against those things we find dangerous. Increasingly, Catholics are finding themselves on the wrong side of the law, especially in regard to issues of sexual freedom. The HHS mandate is predicated upon the assumption that access to contraception, sterilization, and abortifacient drugs is a fundamental right, and therefore to stand against facilitating this access, as the Church must, puts Catholics athwart the law. The same is true in regard to gay marriage. To oppose this practice is not only unpopular or impolitic, but, increasingly, contrary to legal statute. Already, in the context of the military, chaplains are encouraged and in some cases explicitly forbidden to condemn gay marriage, as this would constitute a violation of human rights.

And this is why the remarks by Andrew Cuomo are especially chilling. That a governor of a major state — one of the chief executives in our country — could call for the exclusion of pro-lifers and those opposed to gay marriage suggests that the law could be used to harass, restrict, and, at the limit, attack Catholics. Further, the attitude demonstrated by the son of Mario Cuomo suggests that there is a short path indeed from the privatization of Catholic moral convictions to the active attempt to eliminate those convictions from the public arena. I would hope, of course, that it is obvious how this aggression against Catholics in the political sphere ought deeply to concern everyone in a supposedly open society. If the legal establishment can use the law to aggress Catholics, it can use it, another day, to aggress anyone else.

Which recalls Martin Niemoller’s ‘First They Came…”

Which precisely gets to the point of the Nazi Holocaust and the belief in ‘lebensunwertens lebens’, or ‘life unworthy of life’, when an entire class of human beings can be denied any human rights when another class has power over them.

And that gets to this past week’s anniversary of Roe v. Wade in America, 41 years of abortion on demand. And President Obama’s remarks to observe that anniversary. And Fr. Barron’s assistant Brandon Vogt taking those remarks to task, challenging the message.

Here’s the message:

Statement by the President on Roe v. Wade Anniversary

Today, as we reflect on the 41st anniversary of the Supreme Court decision in Roe v. Wade, we recommit ourselves to the decision’s guiding principle: that every woman should be able to make her own choices about her body and her health. We reaffirm our steadfast commitment to protecting a woman’s access to safe, affordable health care and her constitutional right to privacy, including the right to reproductive freedom. And we resolve to reduce the number of unintended pregnancies, support maternal and child health, and continue to build safe and healthy communities for all our children. Because this is a country where everyone deserves the same freedom and opportunities to fulfill their dreams.

Here’s Brandon Vogt’s challenge:

Though relatively short, the President’s statement is packed with several confusing assertions. I’d like to respond to some of them:

“[W]e recommit ourselves to the decision’s guiding principle: that every woman should be able to make her own choices about her body and her health.”

It’s true that every woman should have liberty to make decisions regarding her own body, but not the body of another. Modern embryology affirms that a new human life is created at fertilization (i.e., conception.) Therefore abortion intentionally destroys the life, and thus the body, of an innocent human being. We all should have choices, but nobody should have the freedom to murder anyone else.

“We reaffirm our steadfast commitment to protecting a woman’s access to safe, affordable health care.”

Everyone agrees that women (and men) deserve safe, affordable healthcare. That’s not the question. The question is whether the restrictions put in place by Roe v. Wade constitute healthcare. Unfortunately, they primarily concern the right of mothers to uninhibitedly take the life of their children. It’s not healthcare to disrupt a healthy and normally functioning process (e.g., pregnancy) nor is it healthcare to destroy the health of unborn babies.

“[We reaffirm a woman’s] constitutional right to privacy”

Like many Constitutional rights, the right to privacy is not absolute. In the eyes of the law, what a woman does with her own body in her own environment is her own concern. Yet when her choices threaten the lives of innocent others, the common good trumps her right to privacy. We all intuitively understand this. It’s why we agree that invading drug labs trumps a drug dealer’s right to privacy. The same principle applies here: women have a right to privacy, but not at the expense of innocent lives.

“[We reaffirm a woman’s] right to reproductive freedom.”

I agree! Women should be completely free to reproduce however and, with certain qualifications, wherever and with whomever they will. But Roe v. Wade doesn’t concern reproduction at all. It regards what happens *after* reproduction occurs, after a new, unique, individual human has already been produced by his or her parents. I agree we should promote reproductive freedom but not the freedom to terminate any resulting children.

This is intellectual honesty we seldom see, directed at each line of the president’s remarks. This is engagement we need.

“[We resolve to] support maternal and child health”

I struggle to see how the Roe v. Wade decision supports child health when it seems that 100% of the children it directly affects are no longer alive.

Yet it doesn’t support maternal health either. By violently disrupting a healthy bodily function, abortion leads to increased depression, cancer, mental illness, future pregnancy complications, and more.

Also, note the President’s chilling word choice here. He didn’t resolve to support women’s health, but specifically “maternal” health. The word maternal connotes motherhood, and you can only be a mother if you have a child. This subtle choice insinuates that the President knows well that pregnant mothers carry children, not some abstract clump of cells, and therefore abortion is not a neutral surgical procedure. It involves a mother intending the death of her child.

“[We resolve to] build safe and healthy communities for all our children.

Again, I struggle to see how the Roe v. Wade decision supports children. Abortion doesn’t result in safe and healthy communities for children. It results in less children.

“Because this is a country where everyone deserves the same freedom and opportunities to fulfill their dreams.”

I wholeheartedly agree! And that’s why Roe v. Wade should be overturned. The misguided court decision crushes the rights of unborn citizens for the sake of born citizens. It smashes their freedom and opportunity on the altar of false liberty. Everyone in this country deserves the same rights—men, women, and children—especially the smallest and most vulnerable among us.

Argue with that, and you are defending age discrimination, among other class distinctions.

Little Sisters of the Poor and Obamacare’s contraception mandate

Sir Thomas More said he was the king’s good servant, but God’s first.  This modern day version isn’t far off.

They were just minding their business serving the poor, sick and dying when the HHS mandate came down requiring them and other employers to provide healthcare coverage that supplied birth control, the ‘morning-after’ pill (both of which can cause abortion of new human life) and elective sterilization as ‘preventive medicine’ for women, free of charge to those women. Even though birth control is widely available even to women on low incomes or public aid through the Title X federal grant, among other programs.

Before the Supreme Court hears oral arguments in HHS mandate lawsuits in March, I’m planning to do a primer here on the basics, which many people still don’t know, based on a lot of uninformed remarks online and throughout the media about the truth and realities of the mandate, its impetus, its overreach, its punitive threat for non-compliance, and its violation of established law.

But the ruling Supreme Court Justice Sonia Sotomayor issued late on New Year’s Eve shed a lot of light on the controversy, and made the Little Sisters of the Poor the unlikely emblem of conscientious objection to government intrusion on basic human rights.

U.S. News & World Report published this backlash calling Sotomayor’s ruling a ‘war on women’, saying she can’t be trusted on “women’s health and human rights”. And that was only the beginning of a tirade on her and the high court, because of its Catholic justices.

HotAir.com tried to navigate that piece.

It’s difficult to pick a place to start with Jamie Stiehm’s anti-Catholic diatribe yesterday that US News’ editors somehow decided to publish as part of their opinion section. It’s such a target-rich environment that it challenges the restrictions of fair use and copyright law, but so ludicrously entertaining that it rises to must-read level. Stiehm uses the issuance of a very temporary stay by Justice Sonia Sotomayor in the case of the Little Sisters of the Poor to argue that Catholics have seized control of the Supreme Court — and really should be excluded from any position of power at all:

Et tu, Justice Sonia Sotomayor? Really, we can’t trust you on women’s health and human rights? The lady from the Bronx just dropped the ball on American women and girls as surely as she did the sparkling ball at midnight on New Year’s Eve in Times Square. Or maybe she’s just a good Catholic girl.

The Supreme Court is now best understood as the Extreme Court. One big reason why is that six out of nine Justices are Catholic. Let’s be forthright about that. (The other three are Jewish.) Sotomayor, appointed by President Obama, is a Catholic who put her religion ahead of her jurisprudence. What a surprise, but that is no small thing.
Let’s test that hypothesis. How many key decisions have been made by the Supreme Court on a 6-3, Catholic/Jewish basis? After all, if Catholicism is the deciding factor in American jurisprudence, then that’s the kind of split we’d most often see, no? Either that or nothing but 9-0 decisions, since Catholics and Jews share a common basis for faith, philosophy, and moral law.

And what has Stiehm so steamed? Not an actual decision by Sotomayor, or even an opinion. Sotomayor issued a temporary stay in enforcing the HHS contraception mandate on Catholic nuns, who would otherwise have to facilitate birth-control insurance coverage or face ruinous fines. Apparently, even an interruption in this mandate rises to the level of gender treason and theocracy.

But never mind facts. When someone is so angry they can become irrational.

Does Stiehm know that nuns are celibate and therefore don’t require birth control, free or otherwise? And that they clearly don’t want birth-control coverage? A mandate that requires nuns to sign a waiver that facilitates coverage of birth control is farcical on its face. Talk about imposing beliefs. The nuns (and other plaintiffs against the mandate with stronger cases) aren’t attempting to prevent employers from providing birth control; they’re trying to stop the government from forcing them to distribute and pay for it, directly or indirectly.

Read the whole piece, Ed Morrissey does his level best to tackle the points of the US News piece.

Elizabeth Scalia has been blogging on this, wondering if US News would issue a correction or apology or some sort of acknowledgement that their pages had allowed such an ‘unprofessional screed’. What they did issue, she contends, was an approval of the unhinged piece Stiehm originally wrote in reaction to Sotomayor’s ruling.

The long-awaited statement from U.S. News was released yesterday evening. Editor Brian Kelly has this to say, regarding Jamie Stiehm’s column dated January 7:

“…We are committed to publishing a diversity of views on a variety of topics. Jamie Stiehm’s piece is within the bounds of fair commentary. We have run letters rebutting the piece and will continue to feature a diversity of opinions on this topic and others.”

That’s weak; a very shortsighted response. Stiehm’s piece was not a standard professional commentary; it was a full-scale, blanket condemnation of a particular set of people, flavored with a strong suggestion that those sorts of people should probably be excluded from the public square.

Let’s take a second look at what Stiehm wrote, insert words other than “Catholic” into her lines, and we can wonder whether Mr. Kelly would be quite so cavalier about printing the following:

(Note: This is a thought experiment by Scalia replacing only Catholic identifiers with other identify groups, and otherwise leaving the accusations in place.)

Lesbians often try to impose their beliefs on you, me, public discourse and institutions. Especially if “you” are female.

Jews in high places of power have the most trouble, I’ve noticed, practicing the separation of church and state. The pugnacious Jewish Justice. . .is the most aggressive offender on the Court, but not the only one.

The seemingly innocent Black Sisters likely were likely not acting alone in their trouble-making. Their big brothers, the meddlesome NAACP are bound to be involved. [Blacks] seek and wield tremendous power and influence in the political sphere.

In one stroke with ominous implications, there’s no such thing as Gay justice or mercy for women on the Supreme Court, not even from GLAAD.

The Dome of the Rock refuses to budge on women’s reproductive right. . .

(Thought experiment ends here. Scalia continues:)

I am going to make a good-faith assumption that Mr. Kelly did not attempt that little exercise before handing down the statement. Had he done so, I find it very difficult to believe that he (or op-ed page Managing Editor, Robert Schlesinger) would still think it fell “within the bounds of fair commentary.”

Or, perhaps they would, and if so they need to admit it. Their readership certainly deserves to know what they stand for, and if U.S. News is going to embrace such a radical editorial policy, they might as well put it out there and say, “yes, we would be just as content with Stiehm’s column if she had expressed exactly these sentiments about Lesbians, or Jews, or African Americans, or Gay men, or Muslims, because we agree that there are some kinds of people who simply should not be trusted to participate in American governance, and it’s time to stop being so politically correct and say it.”

That would almost be refreshing, truth be told.

Until, of course, people understood that this is how jackboots are constructed.

I hope U.S. News will give it another shot. As I said in this piece, the knee-jerk habit of silencing anyone — left or right — who misspeaks or says something stupid or even vile, does not allow for education, reconciliation, enlightenment or enlarged thinking, and I have never supported it. We need to move beyond making people “go away”, because scalp-collecting begs retaliation. And too, we really do need to know what people actually think, not merely what they say. That way, there are no surprises when movements spring up.

But clarity of purpose is required, and as regards this matter, things are still murky. When I asked Schlesinger if he cared to comment further, he declined, so we still need answers: Why, precisely, does U.S. News think Stiehm’s piece fine and fair, as it is, and to what end do they defend it? Are they saying “let ‘er rip” and endorsing full-scale hate speech as something good and necessary — the inevitable corrective to thirty years of hedging language, used in service to ersatz and redefined notions of “tolerance” and “sensitivity”? If that’s what they’re intending, that might at least be interesting and some people may even applaud it; the policing of public language has left us leery of each other, flocking to echo chambers that feel “safe” but have furthered our polarization.

If U.S. News intends a correction in public dialogue, let them own it.

USA Today’s editorial board published this. Their view on ‘Obamacare overreach’: ‘Nuns and birth control don’t mix’

When the Obama administration picked a fight with Catholics and other religious groups over free birth control coverage for employees, sooner or later it was bound to end up doing battle with a group like the Little Sisters of the Poor.

And sure enough, the administration is now stuck arguing that it is justified in compelling nuns who care for the elderly poor to assist in offering health insurance that they say conflicts with their religious beliefs. Talk about a political loser…

Wisely, churches and other houses of worship are exempt from the requirement, but the administration wrote rules so narrowly that they failed to exempt Catholic and other religiously affiliated hospitals, colleges and charities. Its position was constitutionally suspect, politically foolish and ultimately unproductive. The number of women affected is likely so small that the administration could find some less divisive way to provide the coverage.

Instead, the administration is battling Catholic bishops and nuns, Southern Baptists, Christ-centered colleges and assorted religious non-profits that filed challenges across the country. The lawsuits stem from an “accommodation” President Obama offered after his too-narrow religious exemption caused an uproar in 2012.

The accommodation is more of a fig leaf than a fix: Although religiously affiliated non-profits do not have to supply birth control coverage themselves, they must sign a certification that allows their insurance companies to provide it instead. Some non-profits have acquiesced, but not the Little Sisters and others who argue that this makes them complicit in an act that violates a tenet of their faith. If the non-profits refuse to sign, they face ruinous fines — $4.5 million a year for just two of the Little Sisters’ 30 homes.

So far, the government is on a losing streak. In 19 of 20 cases, including the Little Sisters’, judges have granted preliminary relief to the non-profits, allowing them to press their claims. The administration should take the hint.

In several cases, even if the government wins, the whole exercise will not result in a single woman getting a single free contraceptive, because under a different law, the insurers themselves are exempt. So what exactly does the administration hope to gain?

Finally, some good questions and attempts at more thorough reporting on the issues surrounding the HHS mandate .

Evangelical leader Dr. Timothy George published this thoughtful piece in First Things Monday.

It is not surprising that abortion extremists have blasted the justice [Sotomayor] for “selling out the sisterhood” and for being “just a good Catholic girl” who “put her religion ahead of her jurisprudence.”

Earlier on the same day, Archbishop Joseph E. Kurtz, president of the United States Conference of Catholic Bishops, sent a letter to President Obama on behalf of his fellow bishops. He asked the president to use his executive authority to broaden the religious exemption to provide relief to many Catholics and other Christians in non-profit institutions affected by the mandate. In particular, he appealed on behalf of those whose religiously informed conscience will not allow them to provide—or to “designate” others to provide for them—sterilization, contraception, and abortifacients. Of course, such things are legally available at moderate costs in this country and could readily be given to all without forcing the Little Sisters and others to go through this conscience-crushing exercise. The situation could also be ameliorated by the government’s simply recognizing the Little Sisters as a “religious employer” which, by any commonsense definition, they clearly are. The Kurtz letter urged the president to offer “temporary relief from this mandate, as you have for so many other individuals and groups facing other requirements under the ACA.” To my knowledge, His Excellency has yet to receive a response.

How did a modest order of women religious—only 2,700 members worldwide—with a mission to care for the elderly poor become the center of a raging social and political controversy?

Dr. George examines the history of the Little Sisters of the Poor and the legacy of their founder.

Jeanne Jugan, who was canonized by Pope Benedict XVI in 2009, has been called the Mother Teresa of her times…

So why are the Little Sisters caught up in the mandate madness? Why can’t they just get on with their good works and forget about their conscientious scruples? Or, as has been suggested, why won’t they just sign a piece of paper and let someone else do their dirty work—surrogate soldiers and contract killings are quite common in some circles.

The answer is quite simple: They actually believe all that stuff they claim to believe. Just like the early Christians who refused to place a pinch of incense on the altar of the imperial deity in order to escape reprisals and recrimination, the Little Sisters of the Poor know, as St. Paul wrote to the Christians at Corinth, that they are not their own, that they do not belong to themselves, that they have been bought with a price (1 Cor. 6:19-20). The Little Sisters will not violate their core values for the sake of expediency. Among those values is this one: “Reverence for the sacredness of human life and for the uniqueness of each person, especially those who are poorest and/or weakest. This is reflected in care that is holistic and person-centered.”

On April 8, 2013, the Little Sisters responded to the “Notice of Proposed Rulemaking” from the Department of Health and Human Services by stating that “the federal government should not force us to counteract through the health benefits for our employees the very same Gospel of Life that we attempt to live out in communion and solidarity with the needy elderly.”

This should be self-evident.

George concludes with this anecdote.

On New Year’s Eve, as Americans first heard about Justice Sotomayor’s ruling—some cheering, some bemoaning—the delightful and spontaneous Pope Francis in Rome picked up the phone to make a surprise call, as he is wont to do. He was trying to reach a group of Carmelite nuns in Spain in order to wish them a Happy New Year. Instead, he got that most annoying of modern contrivances, the answering machine. In the message he left, the pope wondered what the good sisters were doing on New Year’s Eve that they could not answer the phone (in fact, they were praying). He promised to call them back, which he did.

I can think of no group that better exemplifies the mission and heart of Pope Francis with his winsome call for mercy and ministry to the poor, the neglected, the least wanted in our society than the Little Sisters of the Poor. Abortion and contraception are not the central concerns of their day-to-day ministry and work. But their consciences have been well formed on these issues by the best of Catholic teaching, including this statement by Pope Francis last August, often reiterated before and since, that “human life must always be defended from its beginning in the womb.” Wouldn’t it be wonderful if the Holy Father, prompted by the Spirit, would be led to call the Little Sisters of the Poor? I believe they would answer the phone.

Little Sisters vs. big government

As they say in politics, the optics are bad in this one.

A legal expert on my radio show this week said their firm, extensively involved in lawsuits against the administration’s HHS mandate, said they were frankly surprised that the administration continued to push forward on the unprecedented mandate after the 2012 election at all, much less pushing it vigorously and committing teams of lawyers to defending it in courts across the country in 91 different lawsuits representing institutions, corporations, small business owners and individuals. But they have.

It was always destined to go to the Supreme Court, and will in March, since the high court decided to hear two key cases involving what some call the ‘contraceptive mandate’ and others the ‘contraception delivery scheme mandate’. It’s stayed off the public radar for the most part, largely due to media ignoring it and Americans being inundated with so many other cases of big government overreach, in other areas.

That hasn’t stopped the vigorous movement to hold off, reverse, overturn, or declare unconstitutional the Obamacare HHS mandate. It’s all here.

Including the New Year’s Eve ruling by Supreme Court Justice Sonia Sotomayor in favor of the Little Sisters of the Poor, who were hesitant to even go to court, their lawyers tell me. They’d rather be doing everything they’ve done for 175 years to take care of the sick, elderly, dying, and just caring for people. They didn’t want this fight. But they won’t give up on it the way they never give up on the sick and needy.

The Wall Street Journal reports:

The Little Sisters of the Poor run a nonprofit Colorado nursing home and hospice and therefore ought to be exempt under what the White House calls its “accommodation” for religiously affiliated institutions like parochial schools, hospitals and charities.

The problem is that to qualify under the “accommodation,” religious organizations must sign a legal contract with their insurer certifying that the religious organizations refuse to subsidize contraceptive services. “This certification is an instrument under which the plan is operated,” the contract notes, then informs the insurer of its “obligations” under the rules.

Those include a command that the insurer “shall provide” contraception to all enrollees, supposedly independently and for free. The political point of the accommodation was to pretend that the costs of contraception or abortifacients are nominally carried by a third-party corporation, but the insurers are really only the middle men. The Little Sisters thus argue that signing the certification contract directs others to provide birth control in their place and makes them complicit.

Boiled down, the Justice Department’s legal response on Friday was: Shut up and sign the form.

Yes, ‘it’s just a piece of paper,’ they contended.

Within hours, dozens of news stories appeared online that put the sisters at the center of a contentious national debate on what constitutes strong-arming a religious congregation to provide contraceptives and other abortion-inducing drugs to its employees.

The sticking point for both sides is a waiver/authorization form that the Little Sisters must fill out to take advantage of a so-called accommodation for non-profit ministries. The form, however, has a dual purpose—it signals opposition to the mandate, but also authorizes a third-party to provide the services it finds morally objectionable.

“The Little Sisters and other applicants cannot execute the form because they cannot deputize a third party to sin on their behalf,” stated the Becket Fund, which represents the Little Sisters, in a brief responding to the Obama administration. The group added that the administration is “simply blind to the religious exercise at issue.”

The Obama administration minimalized the importance of the form, enticing the Little Sisters to “secure for themselves the relief they seek” …“with the stroke of their own pen.”

Mark Rienzi, senior counsel for the Becket Fund who filed the lawsuit on behalf of the nuns, said in a statement Friday that the administration was “trying to bully nuns into violating their religious beliefs.”

If the sisters don’t sign the waiver/authorization form, or if the courts don’t uphold the injunction, they could be subject to devastating IRS penalties that could add up to millions of dollars a year.

As Fr. Dwight Longenecker notes, we’ve seen this scenario before.

Where have we heard this before? Henry VIII and the Act of Supremacy. In November 1534 the English Parliament decreed that King Henry VIII was the “only supreme head on earth of the Church of England.” Everyone who held public office had to take the oath of supremacy, and most did. After all, it was “only a few words…only a pen stroke if you like…only a piece of paper.” At first the authorities even made it easier for people with tender consciences. A clause was added to the claim that the king was the head of the church: “insofar as the law of God allows.” Many of the clergy took the oath while they kept their fingers crossed with the compromise clause.

Once they got most to comply the compromise clause was removed. Those who had compromised now found that they had sworn the oath in the original form and they were held to it. When Henry’s illegitimate wicked daughter Elizabeth came to the throne the Oath of Supremacy was extended to schoolteachers, local authorities, university students–virtually anyone in any position of authority. To refuse to take the oath was treason, and the oath was demanded by the officers of Elizabeth’s police state.

The issue here is of the tactics used to suppress opposition. An oppressive government will insist that those with religious objections conform. They will say, “It is only a piece of paper. It is a mere pen stroke. What harm can there be in taking this way out we have offered you?” However, if it is a mere pen stroke or only a piece of paper, then why does the government insist on conformity of the Little Sisters of the Poor? If it is only a piece of paper or a pen stroke, why bother? Because it is most assuredly not a mere piece of paper or a pen stroke. It is the violation of the sister’s conscience by the government authorities. Why does the federal government insist on this detail? Because they know that if one group is allowed to have an exemption on religious grounds, then all groups may claim a similar exemption because of religious beliefs.

If this religious belief is honored, then every other religious belief on every other issue must also be honored. What is at stake in this argument, therefore, is not the comparatively minor issue of whether some Catholic sisters should authorize a third party to pay for contraceptive services, but whether any group, individual or business has the right to opt out of a government program which imposes on their lives and their beliefs. This government, like Henry VIII’s and Elizabeth I’s and all other tyrants, says “No. The will of the state takes precedence over religious opinions. You will conform.”

Archbishop Joseph Kurtz, newly elected head of the US bishops conference, the body which found unusual unanimity in standing against this violation of religious freedom and basic conscience rights, explains.

Pope Francis inspires Catholics and non-Catholics alike with his focus on the gospel call to serve “the least of these.”

Our faith calls us to put first the needs of our brothers and sisters who suffer in poverty, and Catholics are justly proud of our network of schools, hospitals and social service ministries that work every day to help the poor and vulnerable.

Yet the ability of these ministries to live out the fullness of our faith is in jeopardy.

The mandate from the Department of Health and Human Services forces countless Catholic schools, hospitals, and social service organizations to participate in providing employees with abortifacient drugs and devices, sterilization, and contraception in violation of Catholic teaching. The mandate went into effect on Jan. 1; ministries now are faced with the choice of violating our deeply held beliefs or paying crippling fines.

If these ministries don’t comply, the financial penalties may mean that some may have to close their doors. As that happens, the poor and those who serve them will be hurt the most. Forcing our ministries to divert funds from serving their neighbors to paying government fines will have real consequences for real people.

Archbishop Kurtz, a wise, kind, gentle and devoted shepherd, is trying to strike the right balance while serving needs justly.

We have spent significant time and effort seeking sincere dialogue with the Obama administration in hopes of preventing this impasse, and we are long-standing advocates of accessible, life-affirming health care. Yet our concerns continue to go unheard. The administration has crafted an “accommodation” that continues to compel our ministries to participate in providing drugs and services that violate our deeply held religious beliefs.

With the implementation date now upon us, we have made one more effort at dialogue, again asking President Obama to exempt nonprofit institutions caring for those in need from the harsh penalties imposed by the mandate.

The administration has shown flexibility in implementing other provisions of the Affordable Care Act, issuing numerous delays and exemptions for many employers and individuals.

We’re only asking that it offer that same consideration to those who want to live by their religious beliefs without facing government penalties for doing so…

On behalf of those served by our schools, hospitals and social service ministries, we will continue to resist the burdens imposed by the HHS mandate.

We hope and pray that the administration and Congress will protect us from those burdens, and that the courts will uphold our freedom to serve those who depend on us.

Some members of Congress are trying, relentlessly, to protect conscience rights and religious freedom. They need support and encouragement. Though everything is not political, everything is made political. In that world, the term ‘optics’ is often applied to actions that will be reported on and judged by the public.

The Little Sisters of the Poor in court seeking protection from administration lawyers is not good optics. To say the least.

Justice Sotomayor’s New Year’s Eve surprise ruling

Few knew she suddenly ruled against Obamacare’s HHS mandate. But they sure noticed her dancing in Times Square that night.

Nobody knew it was coming. So how odd it was to see the breaking news that Justice Sonia Sotomayor had just ruled to delay the Obamacare birth control mandate in th e waning hours of New Year’s Eve.

Sotomayor acted on a request from an organization of Catholic nuns in Denver, the Little Sisters of the Poor Home for the Aged. Its request for an emergency stay had been denied earlier in the day by a federal appeals court.

The government is “temporarily enjoined from enforcing against applicants the contraceptive coverage requirements imposed by the Patient Protection and Affordable Care Act,” Sotomayor said in the order.

Sotomayor, who was in New York Tuesday night to lead the final 60-second countdown and push the ceremonial button to signal the descent of the Times Square New Year’s Eve ball, gave government officials until 10 a.m. EST Friday to respond to her order.

I see this not three hours before that midnight ball drop in Times Square, not knowing she’s there. I’m watching Twitter and Facebook and online news sites erupt with word about the ruling. And then I see her dancing in Times Square.

What just happened?!

Becket Fund explains.

Tonight the Little Sisters of the Poor received a temporary injunction from the Supreme Court protecting them from the controversial HHS contraceptive mandate. The injunction means that the Little Sisters will not be forced to sign and deliver forms tonight authorizing and directing others to provide contraceptives, sterilizations and drugs and devices that cause abortions (see video).

”We are delighted that the Supreme Court has issued this order protecting the Little Sisters,” said Mark Rienzi, Senior Counsel for the Becket Fund. “The government has lots of ways to deliver contraceptives to people–it doesn’t need to force nuns to participate.”

The order was issued by Supreme Court Justice Sonia Sotomayor, who is the Justice assigned for emergency applications from the Tenth Circuit Court of Appeals. Justice Sotomayor also ordered the federal government to file a brief in response to the Little Sisters’ application.

Prior to the order, preliminary injunctions had been awarded in 18 of the 20 similar cases in which relief had been requested.

”Virtually every other party who asked for protection from the mandate has been given it,” said Rienzi. “It makes no sense for the Little Sisters to be singled out for fines and punishment before they can even finish their suit.”

The Little Sisters are joined in the lawsuit by religious health benefit providers, Christian Brothers Services, Christian Brothers Employee Benefits Trust. The Plaintiffs are also represented by Locke Lord, a national law firm, and by Kevin Walsh, a law professor at the University of Richmond.

To date, there are currently 91 lawsuits challenging the unconstitutional HHS mandate.

In fact, one expert told me Monday that he had expected the administration to drop the thing after winning the 2012 election, and admitted surprised that they’re as dug in as they are in pressing something so oddly ungrounded and without any merit whatsoever.

The Chicago Tribune editors published this editorial following Sotomayor’s ruling.

The administration has set out a complicated standard for whether a company or organization should be exempt from these rules. On one end stand for-profit corporations, which aren’t exempt. At the other end, churches and some other religious institutions, which are excused. In the middle are many groups that have a religious affiliation and a faith-based mission, such as Catholic-affiliated universities and hospitals, and the Little Sisters of the Poor in Colorado.

Earlier this week, Archbishop Joseph Kurtz, the head of the U.S. Conference of Catholic Bishops, complained in a letter to Obama that while the administration had “relaxed the rules” for many Americans’ health plans, “one category of Americans … has been left out in the cold: Those who, due to moral and religious conviction, cannot in good conscience comply” with the contraception mandate.

That provision, he added, “harshly and disproportionately penalizes those seeking to offer life-affirming health coverage in accord with the teachings of their faith.”

The administration has made numerous exceptions to the rules of Obamacare — including delay in the insurance mandate for employers and many individuals. About a year ago, the Department of Health and Human Services announced it would draw a distinction between religiously affiliated employers and secular employers. But it still sought a guarantee that their employees would have contraceptive coverage.

We’re not arguing against insurance coverage of contraceptives. But a government mandate that religious organizations violate the tenets of their faith is an unconstitutional reach.

Right. As they conclude, Obamacare is the law of the land. But the constitutional protection of religious freedom is more deeply and historically embedded in this country’s foundation, and there’s no defensible reason why it might be denied – or even challenged – now.