The Obama administration believes it is permitted under the Constitution to force religious organizations to pay for abortions, according to the newest brief filed in the long-running case brought by the nuns of the Little Sisters of the Poor.
The U.S. Supreme Court will hear oral arguments Wednesday in the case, which consolidates cases from the Third, Fifth, 10th, and D.C. circuits. If the vote ends up 4-4, due to the absence of the late Justice Antonin Scalia, the lower-court rulings, most of which favored the administration, will stand.
The new brief on behalf of the nuns and several other organizations challenges an Obamacare requirement that their employee health insurance plans cover abortion pills despite their religious beliefs.
The brief says the government “fails to explain why it exempts – not ‘accommodates,’ but truly exempts – some religious employers if compliance via the regulatory mechanism imposes no substantial burden.”
“The government insists that it does so as a matter of administrative grace and ‘special solicitude’ for churches, and that nothing in RFRA requires the exemption,” the brief says.
“Thus, in the government’s view, it could eliminate the exemption for churches tomorrow. That is astonishing enough, but it fails to grapple with the reality that by granting the exemption the government has already conceded that it does not have a compelling interest in demanding compliance from religious employers who are more likely to hire people who share their religious objections,” the brief explains.
“But the government has no more compelling interest in demanding compliance from petitioners, who share the same statutory entitlement to hire people who share their own faith as the exempted employers,” the brief says. “Nor can the government escape the reality that the mandate’s secular exemptions and the government’s own concessions regarding them doom its least-restrictive means defense. The government claims that asking whatever subset of petitioners’ employees who actually want contraceptive coverage to obtain it through an exchange would ‘inflict tangible injury’ that cannot be tolerated. But the government itself champions the exchanges not a dozen pages earlier in its brief as one of several acceptable paths through which the tens of millions of employees whose employers are already exempt can obtain contraceptive coverage.”
Despite the written law, the Obama administrative has granted exemptions to the abortion-pill requirement to many employers, including major corporations and churches.
Yet it has singled out several faith organizations, such as the nuns who run senior care centers worldwide and Christian colleges.
“The government simply cannot explain why what it deems sufficient for all the other individuals who lack access to an employer-sponsored plan with contraceptive coverage (whether because of the religious exemption, the grandfathered plans exemption, or the small business exemption) is somehow too burdensome for petitioners’ employees,” the brief says.
The brief was submitted by attorneys for the Alliance Defending Freedom, Bancroft PLLC, Bradley S. Typi, Locke Lord LLP, Wynne and Wynne LLP and the Becket Fund, who are representing the parties challenging the Obamacare requirement.
The brief points out that Congress determined it was not imperative to apply the abortion mandate to everyone and found in the Religious Freedom Restoration Act that “all those whose religious exercise is substantially burdened by the federal government – not just the lucky few favored by the executive – are entitled to an exemption when imposing that burden is not imperative.”
“This court need do nothing more in this case than honor those congressional judgments,” the brief says. “Conscripting nuns, seminaries, and other religious nonprofits to facilitate access to something as obviously religiously sensitive as contraceptives and abortifacients substantially burdens their religious exercise, as even the government implicitly recognizes when it comes to churches.”
The government has told the plaintiffs they have the option of having a third party provide the abortion pill coverage.
But the nuns explained that facilitating the delivery of abortifacients in any way, even signing a document, violates their deeply held faith.
“What the government really wants from petitioners is the plan infrastructure and contractual relationships that it needs to achieve the ‘seamless’ provision of contraceptive coverage to petitioners’ employees.”
Further, there’s evidence of an intent to harm the plaintiffs, the brief contends.
“Indeed, the government itself admits that it already has the identity of several petitioners’ insurers and TPAs, and even believes that it has identified a third party willing to provide the coverage in each of those instances … yet it still has not deemed those petitioners in compliance or relented in its demand for massive fines.
“If all the government needed from the Little Sisters was to know that ‘they believe that it is religiously wrong for them to facilitate the provision of contraceptive procedures … then there would be no need to continue threatening them with massive fines.”