The Little Sisters case: being forced by government to act against one's principles

By Phil Lawler ( bio - articles - email ) | Jul 14, 2015

The Tenth Circuit Court of Appeals, in its decision that would require the Little Sisters of the Poor to comply with the Obamacare contraceptive mandate, used a revealing argument to dismiss the Little Sisters’ claim that the mandate infringes on their religious freedom.

Some background is required here. The court ruled that the current Obamacare rules, with their “accommodation” for religious institutions, provide adequate protection for the consciences of those who object to contraception. Under the terms of that “accommodation,” the religious institution is not required to pay for its employees’ contraceptives. Instead, the institution must file a form with the government, saying that it objects to the mandate, and providing the names of the employees. The government will then arrange the contraceptive coverage; the employer is not required to pay for it—in theory.

In practice, the employer will pay for the contraceptives, because the insurer will pay for them, and the employer will pay the insurance premiums. If the Obamacare “accommodation” forces the insurers to provide contraceptives at no cost, it’s only reasonable to assume that the insurer will make up that loss by charging higher premiums. But that’s a secondary consideration.

The primary consideration is this: By filing that federal form, the religious institution is sending Uncle Sam a message: “We don’t want to buy contraceptives. Here’s a list of our employees. You buy the contraceptives, so that we can keep our hands clean.” That message may be acceptable if your goal is to maintain some sort of ritual purity. But if you actually believe that contraception is a bad thing—if you think that by providing contraceptives you are harming employees—then ritual purity is not good enough. By filing that form, the institution is setting in motion the sequence of events that will furnish contraceptives to its employees.

Now with that in mind, consider this sentence from the Tenth Circuit ruling:

Plaintiffs have not shown any likelihood that their sending in the Form or the notification would convey a message of support for contraception.

But the problem isn’t that the Little Sisters might “convey a message of support for contraception.” Everybody knows where the Little Sisters of the Poor stand. The problem is that, by filing that form, they would—indirectly but certainly—convey the contraceptives themselves! This isn’t an abstract question about taking a political stand; it’s a practical question about avoiding cooperation in a program that the Little Sisters regard as gravely evil.

The question before the Tenth Circuit was not whether the Little Sisters could express their objection to the contraceptive mandate. They could and they did; their objection is on the record. But that doesn’t end the matter. The question was whether, despite their objection, they can be forced to participate in the program. The court, sadly, ruled that they can.

The First Amendment protects both freedom of speech and freedom of religion. This case involves freedom of religion, but the Tenth Circuit approached it as a question of freedom of speech: a question about how the Little Sisters could send their message. But the First Amendment protects the free exercise of religion—not just what believers think and say, but how they act in accordance with their religious principles.

By the way, in his dissent from the majority opinion in the Obergefell case, Chief Justice John Roberts pointed out that the majority acknowledged the right of religious groups to “advocate” against same-sex marriage. However, he continued: “The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.”

Ominous indeed. The Tenth Circuit decision in the case of the Little Sisters illustrates the danger that the Chief Justice saw, and proves that it is not just a remove theoretical possibility. We’ve been warned.