What an interesting moment we have arrived at with the Obamacare contraception mandate. The Catholic order Little Sisters of the Poor requested, and on 31 December was granted, a restraining order against the federal government’s enforcement of the Obamacare contraception mandate. Eric Holder’s Department of Justice has come back swinging, with a brief to the Supreme Court insisting that the Little Sisters – virtually alone among the religious organizations seeking relief from the mandate – be denied the injunction that now protects them from devastating IRS fines.
If you want to catch up fully on the Little Sisters’ case, start with the Becket Fund site here, which has links to court filings and other documentation.*
At the heart of the current skirmish is the Little Sisters’ refusal to sign the waiver request, otherwise known as EBSA Form 700, with which an organization self-certifies that it is a religious non-profit, and therefore qualifies for the deceptively named “exemption” crafted by the Obama administration to answer the objections of religious groups.
The “exemption” wording is deceptive because the contraception mandate isn’t lifted; the responsibility to provide the objectionable services to the religious organizations’ employees is simply shifted. The mandate remains in place. Someone is on the hook to guarantee the provision of contraception services to the employees.
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And EBSA Form 700 says precisely that (see page 2 of the form), as do the provisions of law on which it is based (listed on the front of the form; for focused explanations, see the July 2013 IRS summary of final regulations for administering contraception and related services under Obamacare, including the religious-organization exemption. See especially the Supplementary Information link and following).
Basically, signing the EBSA form constitutes an acknowledgment that the responsibility to provide contraception services for employees of Little Sisters of the Poor is shifted thereby to a “third party administrator.” That’s what the form says. That’s what the law says.
For the Little Sisters, therefore, signing the form is tantamount to commissioning a third party to provide “health services” they believe are wrong to their employees.
Now, here’s where it gets interesting: where the Little Sisters are understandably wary, and the Obama administration and its apologists disingenuous. The “third party administrator” of the Little Sisters’ health insurance plan is Christian Brothers Trust, which is exempt from the Obamacare mandate entirely, because it is covered by the ERISA (Employee Retirement Income Security Act) exemption for church benefit plans. Obamacare honors the ERISA exemption for church plans, which prohibits the federal government from levying mandates on such plans.
(The Little Sisters are held by the U.S. government to not qualify for an ERISA plan. They’re not a “church.” They are therefore subject to Obamacare, and must apply for the Obamacare “exemption” as a religious non-profit.)
Hang in there with me just a few more sentences. The government’s argument is that since Christian Brothers is an exempt plan administrator under ERISA, and doesn’t offer contraception services and has no intention to, the Little Sisters in effect are not commissioning a third party administrator to offer those services by signing the Form 700 – even though the Form 700 says that’s what they’re doing.
The argument the Sisters are making is that signing the form could easily commission another, undesignated third party administrator, such as a pharmacy services operator (like Express Scripts, which the Sisters’ plan does business with), to provide contraception devices to their employees – under the Obamacare provision that would compensate such third parties for doing so, using federal funds.
The Little Sisters’ 3 January briefing to the Supreme Court goes into recent federal court proceedings that make it clear this is exactly what will happen. Frankly, the contumacious reaction of the Holder Justice Department to the Little Sisters’ case suggests that it has been clear for some time, in the rarefied precincts of regulatory-law practitioners, that the Form 700 is what the Sisters say it is: a notification to third parties that either (a) those parties must provide the objectionable services, or (b) the federal government will compensate them if they do.
The Little Sisters have simply caught the Obama administration out in its pretense that the nuns (and other Americans) needn’t worry their little heads over the implications of the Obamacare mandate. It’s not just likely; it’s inevitable that if the Little Sisters sign the Form 700, the Obama HHS will itself make sure third parties are notified – using the form – that those parties will be compensated for providing contraception services to Little Sisters employees.
The form is a back door, in fact, through which the Obama HHS could undermine the intent of ERISA for the benefits plans administered by Christian Brothers. The effect of the Form 700 is to obtain the agreement of the religious non-profit to the principle that the government’s judgment prevails, when it comes to how the religious organizations’ employees are to be covered.
Instead of freedom and private discretion being the going-in assumption, to which government requirements are an occasional exception, it’s the government requirement that is the going-in assumption – and the exercise of freedom of conscience the occasional, potential exception.
The Little Sisters of the Poor do not agree that the government’s judgment must invariably prevail in the matter of how their employees are served for their health care needs. In the case at hand, what the government’s judgment mandates, their consciences see as sin. Signing the form would express the very opposite of what they hold to be true and necessary.
The Little Sisters’ case also highlights the supremely important truth that it is on just such finely parsed points, such “administrative” moments, that our concept of liberty lives or dies. I have been struck today by the repetitive mantra of the left, in editorials and on the Sunday shows, that the Sisters should “just sign the form.” In the advocacy ranks of the left, dismissal of the objections in the Sisters’ briefings is complete. There is no acknowledgment of either the real consequences laid out in their briefings, or the claims of conscience; there is only the chant: “Just sign the form!”
This is how evil always argues with us. It tries to confuse our options and blind our judgment, until it seems foolish or pointless to not do what we’re being asked to do. It tries to frighten us, make us feel alone, silly – even make us feel like we’re overthinking the problem.
You don’t see the barbed wire and guard towers of a concentration camp around you today. But under no circumstances is there a good, moral, or even safely neutral purpose for shouting in unison at anyone to “Just sign the form!” When we hear that kind of cadence being called, it’s always evil speaking.
Under the collectivist dictatorships of the last century, it took concentration camps and their tortures to silence the consciences of the people. God help us if today that silencing can be accomplished out in the American public square, against the Little Sisters of the Poor, by a talking-point incantation, amplified through the mainstream media, and aided by complacent passivity on the part of the rest of us.
Remember always, in the meantime, that this is an artificial conundrum, set up by government policy. The way out of it is simply for government to govern less.
* Don’t miss my colleague Kevin Whiteman’s post either, noting Charlie Daniels’ support for the Sisters. Bonus question: Can Charlie Daniels really be 77? And if so, how old does that make me?