Can the federal government force nuns to pay for birth control? No.
Can the federal government force nuns that don’t want to pay for their employees birth control to sign an opt-out form so that the federal government can intervene to provide contraceptive coverage to their employees through another means?
That is the question at heart of the arguments in the case Zubik v. Burwell being made today at the Supreme Court.
While there are seven plaintiffs challenging the mandate that employers, including faith-based employers, must purchase contraceptives they find objectionable, Little Sister’s of the Poor has become the face of the resistance.
Their argument is that it is immoral for them to help the federal government distribute these drugs.
In an interview with the Washington Post, Sister Constance Veit explained the concern the Little Sister’s of the Poor has with being asked to opt-out.
“What this form is, it’s not an opt-out. It’s an opt-in. It’s a permission slip by which we would be giving the government permission to go into our plan,” Veit said. “By signing that form, we’re authorizing the government to go in and take over our healthcare plan.”
Lori Windham, an attorney at the Becket Fund for Religious Liberty which represents the nuns, argued, “This is actually using the sisters’ authorization to come in and add something to their healthcare plan.”
The federal government, however, sees the opt-out scheme as a way of balancing the religious beliefs of religious organizations with what they view as a compelling interest in making subsidized contraceptives available to everyone.
They argue that signing the form is to far removed from the actual provision of contraceptives to be considered part of it.
In the decision that is being appealed to the Supreme Court,the Tenth Circuit Court of Appeals essentially told the ministries that signing the form was not in violation of their religious beliefs.
The Supreme Court is being asked to reverse that decision.
The other plaintiffs in the case include Christian Brothers Employee Benefit Trust, Christian Brothers Services, Reaching Souls International, Truett-McConnell College, and GuideStone Financial Resources of the Southern Baptist Convention.
The outcome of this case could be more challenging for the Plaintiffs in light of the recent death of Supreme Court Justice Antonin Scalia, a consistent proponent of religious freedom. Without Justice Scalia, the conservative wing of the court (Alito, Thomas, and Roberts) would need moderate swing vote Justice Kennedy and one of the court’s leftists (Breyer, Kagan, Sotomayor, and Ginsberg) in order to reach a five vote majority.
In the event of a 4-4 tie, the most recent lower court decision will stand. In this case, that means the 10th Circuit decision would stand and the Little Sisters of the Poor would be obligated to fill out the form if they want an exemption or face fines for failing to comply with the mandate. The Supreme Court could agree to hear the case at a future date once there are nine justices on the court again.