Written by Don Byrd
Slate’s Dahlia Lithwick today offered an insightful piece regarding the lawsuit brought by the Little Sisters of the Poor challenging the enforcement against them of the contraception coverage provisions in the Affordable Care Act. You may recall that the even thought the Little Sisters, as a religious organization, are exempt from the law’s requirement to provide such coverage, they object to filling out the government’s form certifying that they are exempt as a religious organization. To do so, they argue, triggers further mandates on other providers to offer it. They claim any participation in such a system – even participating in acquiring a religious exemption – violates their religious freedom.
Lithwick dives into this claim to explain why this argument may be about more than just a government form:
The nuns argue they cannot cause contraception to be offered. The government says that it’s the government causing contraception to be offered and that the nuns are indeed being afforded the right not to participate. Extending the Little Sisters’ argument about agency means that so long as any employee obtains contraception in any fashion, the sin is done. This undermines the entire principle of religious accommodation, which is supposed to protect the conscience of the religious objector but not violate the rights of everyone else.
…The Little Sisters reject the government contention that the form is an opt-out. Why? Religious doctrine. And somewhere in the interstices of religious doctrine, an ephemeral combination of signing this form, greenlighting its consequences, endorsing the idea of such coverage, and putting it all into writing, there lies, in their view, a violation of religious law. In other words, the two parties to this case are talking right past one another, and that puts the courts in a very precarious position. This isn’t just a fight over what signing the form means, it’s a fight about who gets to decide what fighting over the form means: Barack Obama or God? And who wants to be the judge of that?
Now, the Court has halted enforcement of the mandate against Little Sisters pending the outcome of their lawsuit, provided of course that they write the Secretary of Health and Human Services to certify their religious objection to providing the disputed coverage… Meanwhile, the Court will hear arguments by for-profit, secular corporations against the mandate in March.
