More than two years ago, a couple of LU writers – Libby Sternberg and I – keyed on the peculiar demand being made by the Obama administration that the Little Sisters of the Poor sign a form, which would trigger others they contracted with to provide contraception services to their employees.
The Little Sisters have always argued that being required to do that would constitute commissioning those others to provide what the Little Sisters believe is wrong. It would make the Little Sisters complicit in the act of providing contraception services.
I pointed out then that the chorus from the left on this matter – “Give it a rest, just sign the form!” – was the speech of totalitarianism, and of evil. Libby made the same observation, developing the point with an illustration from the painful annals of Nazism.
The left, of course, has refused to engage on this question. But the Supreme Court, deliberating Zubik v. Burwell this month, has brought it back front and center.
The justices are questioning the necessity claimed by the Obama administration for the Little Sisters to sign the special form – which is what the case turns on. (It’s important to point out once again that signing this form is a special requirement being laid on the Little Sisters and a relatively short list of other religious organizations. This is not something that a whole bunch of other entities are signing as a routine matter. Hobby Lobby, for example, which has won exemption from having to provide coverage for abortifacients, isn’t being asked to sign the form.)
And now the court has taken the unusual step of asking the defendant – the Obama administration – and the plaintiffs, who include the Little Sisters, to address whether there isn’t a “less restrictive” alternative to the mandate the Obama administration wants to impose. (The “less restrictive” language relates to the burden on the religious objector under the Religious Freedom Restoration Act of 1993.)
Basically, the Supreme Court asks, isn’t there a way for the federal government to accomplish its goal without requiring the Little Sisters to sign this form?
And the answer the administration has now given is yes.
To be sure, Team Obama gets to “yes” in a reluctant and convoluted manner. Professor Michael McConnell of Stanford Law takes us through it in an absolute must-read passage posted at Eugene Volokh’s WaPo blog.
In a lengthy brief, the administration basically backs down from its previous demands, acknowledging that there is a simple way to accomplish its stated goal without making the Little Sisters sign a special form.
In short – McConnell teases this out from the administration’s own ill-tempered brief – the Little Sisters can simply decline to cover contraception, and the government can take that as its notification, and make contraception services available on the same basis as for women who aren’t employed, or don’t have employer-provided health insurance. In other words, the already-existing options of Medicaid or (in theory) a private insurance policy obtained through an Obamacare exchange are the perfectly obvious alternatives for covering contraception. As McConnell points out, the Little Sisters have said this is fine with them, because this solution doesn’t require them to trigger anyone they contract with to provide contraceptive services to their employees.
In fact, making this the solution ought to be even easier for Obama than it was with Hobby Lobby, because the Little Sisters aren’t a for-profit enterprise. Politically, no one has to sit around feeling grumpy over the piles of someone else’s commercially-gained money that aren’t going to contraception. They can rejoice, instead, that it’s women who’ve taken a vow of poverty who aren’t covering contraception in their health policy because they believe it’s wrong.
But read the whole McConnell summary. It contains a number of gems that only make it clearer that the administration’s goal was to intimidate the Little Sisters into signing a form. Consider just this one excerpt, and the speciousness of the Obama administration’s supposed reasoning. Here the administration is addressing a proposal advanced by the Supreme Court to resolve the matter without adding the unnecessary form that acts as a trigger:
The Court’s proposal won’t work, the government says, because it needs “written notification” of petitioners’ religious objections [i.e., the special form, EBSA Form 700]. Why? Two reasons: (1) written notification eliminates the need for the government or the insurer to “verify the employer’s sincerity”; and (2) it provides documentation so that the religious employer is not punished “if the insurer fails to provide the required coverage.”
But the government later admits that when a religious employer tells its insurance company to exclude religiously objectionable drugs, it is communicating the same message as when it provides a “written notification.” So the government already has everything it needs.
Indeed. The form was never actually needed. The point all along was to establish that the federal government can browbeat the people into violating their consciences. That wasn’t just collateral fall-out from the administration’s push. Clearly – one more time – it was the point.