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Abbot Peter Novecosky, OSB


Abbot Peter Novokosky

Big win for Little Sisters

A May 16 U.S. Supreme Court decision is bringing a solution to a long, drawn-out battle between religious groups and the U.S. government over contraception and religious freedom. At issue is the Affordable Care Act of 2010.

In the dispute, the federal government has sought compliance from most employers, including religious employers, with the mandate requiring them to provide contraceptives, sterilization and abortifacients as part of employees’ health insurance plans — even if the employer morally opposes the coverage. Refusal to comply subjects employers to heavy fines.

The law has a very narrowly drawn exemption for churches. For non-exempt religious employers the government created what it calls “a work around,” by which the objecting religious employers can certify with the Department of Health and Human Services (HHS) or the Department of Labour that providing the coverage will violate their religious principles. In turn the federal government arranges with a third party to provide the coverage.

But non-exempt religious employers object. They say that even following this so-called accommodation would violate their religious principles. An earlier version of the “work-around” asked objecting employers to sign a form, file it with HHS and ask a third party, such as the manager of their health plan, to provide the coverage.

Attorneys for the Becket Fund for Religious Liberty, in the case of Zubik vs. Burwell which involves the Little Sisters of the Poor, Priests for Life and the dioceses of Pittsburgh and Erie, Pennsylvania, and the Archdiocese of Washington, argued the government could use a less restrictive manner of providing contraceptive coverage to women working for their organizations. Their lawyers argued that religious freedom was at stake in the government’s accommodation because even though the contraceptive coverage would be supplied by a third party, the religious employers would still be complicit in providing something that goes against their beliefs.

The nine-page, unanimous decision of the court “is a game-changer,” said Mark Rienzi, senior counsel at The Becket Fund. “The court has accepted the government’s concession that it can get drugs to people without using the Little Sisters. The court has eliminated all of the bad decisions from the lower courts. And the court has forbidden the government from fining the Little Sisters even though they are refusing to bow to the government’s will. It is only a matter of time before the lower courts make this victory permanent.”

The court made clear that it is not expressing an opinion on the merits of the cases that are challenging aspects of the government’s health legislation and it also was not ruling on the issue of a potential violation of religious freedom.

Washington Cardinal Donald W. Wuerl said the court’s order offered a path forward, but he also acknowledged that “this struggle will continue.”

He said the archdiocese will continue its work to “serve others in education, health care, social services, and outreach to the poor and those most in need.” We will continue to do that because “that is our Catholic identity.”

The court decision shows that rational arguments can overcome ideology. Too bad it took so long.