Here are my thoughts on the Little Sisters cases, the day after a unanimous Court sent them back to the lower courts:
You know the good news! The feds cannot fine or otherwise punish the Little Sisters and the other religious institutions for refusing to give the feds the form that allows them to use (“hijack”) the Little Sisters health plan as a vehicle for delivering contraception and early abortion to their female employees and to the daughters of all employees.
There is other good news. Although the Supreme Court expressly stated that it was not making any definitive findings under the Religious Freedom Restoration Act – (i.e. whether the regulation burdened the Sisters’ religion; and whether the government had a “compelling state interest” to justify the burden, which interest was exercised by the means “least restrictive” of the Sisters’ religious freedom) – I can’t imagine that they would have remanded (returned) the cases to the lower courts unless they believed that the Sisters’ had at least made the “threshold” showing that the regs burdened their religion.
This is important because the Obama administration made a scary argument that the GOVERNMENT, and NOT the Little Sisters had the right to determine if a law burdened religion. In short, they were arguing that the Sisters do not get to have the final word on what their religion teaches, but the government does.
While we didn’t get a definitive holding on this yesterday, we got a signal that maybe the Obama administration did not persuade the Court on this point.
Additional good news: it looks like the Court was not inclined to hold that the existing rule (fill out this form to let us hijack your insurance, or pay millions annually….) was the “least restrictive means” by which the government could deliver contraception and early abortifacients to religious institutions’ employees. No, the Court did not say this formally, but it suggested it by sending the case back after ordering supplemental briefs specifically on the matter of whether the feds could find a way to do what they wanted without involving the Little Sisters at all.
Now the less good news. While the government may now “settle” the cases with the religious institutions, rather than litigate again in lower courts, it also may not. Its devotion to contraception-as-the-sum-of-female-freedom is nothing short of fanatical. So the religious institutions may have to litigate again, although this time with a better shot at winning, albeit after more expense and litigation.
Furthermore, yesterday’s opinion was shot through with several positive references to the role of contraception in promoting women’s health, and to the government’s hopes to get contraception through to employees as easily and abundantly as possible. Ugh. There was no hint that our argument, or the argument of the parties, that the government lacks any “compelling” interest in supplying free contraception – played any role in the Court’s thinking. To understand this, it’s good to contrast what the Court did, with what WSFT would have hoped for the case, to wit:
First, a holding that the Sisters have shown a “burden” on their free exercise because the threat of being fined out of existence for refusal to attach birth control and abortion to one’s health insurance benefits is a clear violation of their religious conscience.
Second, that the feds have not shown a “compelling state interest” because they have no empirical proof that contraception and early abortion are “preventive health care” for women. This is so because:
- There are MORE not fewer unintended pregnancies and abortions among targeted women after government programs of this type go into effect;
- Many women suffer serious or even fatal health effects from these drugs and devices;
- Very few sexually–active women are not already using contraception, and those who don’t use it don’t cite health costs — therefore there cannot be any “compelling interest” in forcing religions to supply what women already have and can regularly afford;
- So many people and companies are exempt from the mandate that it is impossible for the feds to claim that their interest is compelling…or why would millions of Americans be exempt?
- The U.S. Preventive Services Task Force – the body that makes official recommendations for the nation regarding preventive health care – has never put “contraception” in its list of women’s preventive health care, even as it HAS included every other recommendation made by the feds in the same report in which contraception was endorsed;
- Widely available contraception and abortion have created a hostile sex and marriage environment for women, and resulted in more abortions, more divorce, less marriage and more nonmarital and unintended pregnancies.
As compared with what we WANTED, yesterday’s decision fell short. But it still contains very good news for the Sisters (no fines or coercion!) and maybe some signals about a decent future for the Court’s interpretation of the Religious Freedom Restoration Act.