Liberty, Prudence, Imperfection, and Law

“Obamacare and the Contraception Mandates: Sometimes a Tie Is Good Enough ,” By Bruce Frohnen

Little Sisters of the Poor care for the elderly across the world.

The Supreme Court recently came to a nondecision in the case of Zubik v. Burwell. This case pitted the Little Sisters of the Poor among other religious groups against the Obama administration. At issue was an Obamacare rule forcing the Little Sisters to cooperate in providing contraceptives and abortifacients (abortion-inducing drugs) to their employees. The case did not produce the victory it might have, had Antonin Scalia lived long enough to participate in the decision. But it was far better than the likely result had President Obama succeeded in pushing through the nomination of Merrick Garland, his pick to replace Scalia. No doubt because of the hopeless 4–4 split on the court regarding the rights of the unborn as well as the right of religious groups to maintain some modicum of self-government, members of the Supreme Court failed to produce any substantive decision. Instead the court vacated a lower court ruling and sent the case back to the Court of Appeals with instructions to leave the parties time to reach a compromise on the issues involved.

This may sound like trouble for the Little Sisters of the Poor. After all, the Obama administration has kept the Sisters tied up in litigation for years, steadfastly refusing to step back from its demand that the Sisters cooperate in providing contraceptives and abortifacients under their health insurance. But, thanks to tough questioning during oral arguments, it became clear even to our Supreme Court justices that the administration’s intransigence on the central issue was insupportable as a matter of law—even the twisted, court-manufactured law that reigns today. For years, now, the Obama administration has claimed that there is no viable option to forcing religious groups to cooperate in providing contraception and abortifacients. Without this cooperation, they claimed, the provision of free contraceptives would not be “seamless” and so women would face an undue burden on their rights.

It became clear during oral arguments that the administration would not garner a majority of justices to agree with it on a number of important issues: that its policy did not substantially burden the Little Sisters’ free exercise of religion, that the government had a compelling interest in forcing cooperation in its contraception mandate from religious employers like the Little Sisters, and/or that current regulations constitute the least restrictive means of achieving the supposed governmental interest in maximizing the availability of free contraception, including abortifacients.

In the end—that is, in supplemental briefs requested after oral arguments—the administration admitted what we all knew all along: contraceptive coverage could be provided to the Little Sisters’ employees without requiring the Sisters to participate in providing it. In essence, if the government wants to force all insurers to provide contraception coverage, it may do so without also forcing religious organizations to violate their conscience. There simply is no need to involve these organizations’ own insurance administrators in the process.

The troubles began for the Little Sisters and other religious organizations when they found that they were being ordered to provide the administrative machinery, under their own health insurance plan, for “services” condemned by their faith. Being Catholic, the Little Sisters hold that contraception (as well as abortion) is morally wrong. Thus, to help provide the means for these acts also is wrong. But the administration refused to address these concerns through the simple means of providing the coverage it so demands directly or through a third-party provider. It insisted that the Little Sisters cooperate in providing contraceptives and abortifacients. Not having sufficient support on the court to obscure the spurious nature of the claim that contraceptives would somehow become less available if it let religious organizations off the hook from formal cooperation with their plans, the administration now will have to provide these items on its own or through nonreligious insurance companies.

This is far from a full-fledged victory for religious freedom, let alone for the culture of life. The court states in its decision that “Nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by petitioners’ health plans ‘obtain, without cost, the full range of FDA approved contraceptives.’” A full opinion on the merits of the case might have addressed the question of whether it really is essential that free contraceptives and abortifacients are provided “seamlessly” by government mandate—that they are somehow essential to free and democratic governance. Sadly, however, it seems clear that four members of our current Supreme Court hold the bizarre view that free contraception is essential to a free and open society. What is more, we are in constant danger that yet more items of personal preference may be added to the list of positive “rights” for which the government can demand we all pay.

Nevertheless, it is important to note the sense in which this punt by the Supreme Court provides a substantial victory for genuine liberty. The Obama administration’s clear purpose in requiring religious organizations’ formal cooperation with its policy was to establish a precedent on which it and its successors could build in eliminating the institutional freedom of religious organizations. As in so much else, the slippery slope argument applies, here, for the government, having established its right to force cooperation from dissenting organizations, would expand its demands. The small victory provided by this decision in the long war waged by the federal government against intermediary institutions is important because it is so rare.

For decades, now, voluntary associations of varying types—from religious organizations to families, businesses, and community organizations, have seen their freedom of self-governance taken away in the name of national concerns. Often under the guise of antidiscrimination policies, Washington increasingly treats the groups that naturally serve as buffers between government and individual citizens as subdivisions of itself. Building on the legacy of the civil rights struggle, which can rightly claim a great victory in ending segregation, proponents of centralization continue to claim that all local associations must be watched carefully lest they engage in some form of invidious discrimination. We continue to see this line of attack against local self-government. Here we may consider the Obama administration’s decree that public schools allow those who identify with a sex other than that to which their biology assigns them to use the bathrooms and locker rooms of the opposite sex.

As important as its claim to be directly vindicating rights is, the administration’s claim to power so that it may achieve substantive equality in the name of a spurious notion of a more general right to a basically economic “fairness.” On this view contraception, including abortifacients, must be provided free, and it must be provided in a “seamless” process lest one person pay more than another for a chemical product the government decrees a right. That contraceptives are hardly difficult to acquire today is irrelevant, for the government wants them provided in the same manner and at the same cost (free) everywhere. This logic defies common sense, for it equates market prices with discrimination, government benefits with natural rights, and the natural results of sexual activity as undue burdens the government has a duty to prevent or “correct.”

There is much work left to do, and under very difficult circumstances, before the federal government will back off on its attempts to determine which choices are “essential” (contraception and gender, for example) and which are “dangerous” (including gun ownership and smoking) without reference to the reasonable expectations of the citizens. Not so long ago custom and pre-existing norms (and constitutional doctrines such as the separation of powers and federalism) guided the federal government in drafting legislation that limits the people’s choices. Not least, of course, commitment to limited government itself checked the federal government’s power to dictate people’s choices in their local communities.

Today, of course, legislation—whether originating in the legislature, in presidential decrees, or in judicial decisions—seems rooted only in vague policy preferences concerning what is required by “justice” or current prejudice. This latest Supreme Court nondecision is one very small step toward checking the federal government’s power to force Americans to aid it in imposing its choices on us all. One hopes it will lead to other, larger steps in the direction of ordered liberty.


Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law.

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