Michael Brendan Dougherty (hereinafter "MBD") weighs in, with his usual acumen, on the legal appeal filed with the Supreme Court on behalf of the Little Sisters of the Poor:
The Little Sisters' case is simple, straightforward, and based on moral premises that are widely shared outside of their faith and recognized in law. The Little Sisters should win at the Supreme Court.
Before getting into the weeds of this case, it should be noted that MBD never mentions, much less grapples with, the fact that the Little Sisters have already been to federal court (the 10th Circuit Court) and lost. This does not mean they won’t win their appeal to SCOTUS; it just means that winning is unlikely to be the “slam dunk” that MBD characterizes it as being.
As for the case being “simple [and] straightforward,” Emma Green (at The Atlantic) begs to differ:
The first thing to know about these [contraception mandate] cases is that they are incredibly complicated. The Court granted cert in seven different cases related to this topic, which means they’ve agreed to hear the questions in those seven cases. All of them have come through different circuit courts in the past months, where they’ve mostly lost.
Finally, let us consider the “moral premises” of the case, which premises MBD believes are both “widely shared…and recognized in law”:
Like many religious groups, the Little Sisters found that the Affordable Care Act's mandate to provide copay-free contraceptive services as part of the compensation they give employees violated their religious conscience. The Little Sisters argue that ObamaCare makes them unable to hire workers without becoming complicit in acts that are intrinsically sinful. Catholics believe fertility and virility are signs of health, a gift from God. Assisting someone in the artificial suppression of these gifts is to assist her in self harm, even if the person doesn't see it that way. There's no clearer form of being an accessory to an act than to contract for it. The nuns cannot in good conscience do so.
MBD anticipates certain objections from his readers, but he is prepared to rebut them:
[Some will object that] if there was no mandate, in all likelihood employees would buy their own contraceptive services or other sinful items with their wages. If the Sisters are so opposed to this stuff, how can they hire anyone in good conscience when the employee might spend her wages on sin? Simple: The wages paid by the Little Sisters are the just reward of labor given to the employee. What the employee does with her justly earned money is her own moral responsibility.
Distinction, meet difference; what the employee does with her employer-provided insurance coverage is also “her own moral responsibility.” The coverage which supposedly makes the Little Sisters “complicit” does not require that an employee purchase contraceptives, it merely makes them available for purchase; as does, for that matter, the existence of the drugstore down the street where the Little Sisters occasionally stop and shop for various non-contraceptive items—are they thereby complicit in keeping the drugstore and its invidious pharmaceutical products in business?
MBD encounters yet another objection:
Still, you may say, how can the opt-out form — in which the government steps in to provide contraceptive services that the Little Sisters won't pay for — be a burden on the nuns? Very easy. The Little Sisters' argument is that the form as it has been devised doesn't just certify that the Little Sisters won't provide this kind of medical coverage as part of their compensation, but that it authorizes and explicitly triggers the government to do so. The nuns are still an accessory to sin.
“Accessory to sin” is, of course, not a legal term at all, despite MBD’s assertion that the claim is “recognized in law”. What the law recognizes is the category of “accessory” to a crime--a crime being something both different and distinct from a sin.1
Luckily, MBD has a solution to all this, once the Little Sisters get their slam dunk:
The government could waive its form, and design one in which insurers or plan managers simply inform the government which users are under plans without these services, allowing the government to provide them afterward.
Hey presto, problem solved! The insurer, not the Little Sisters, fills out a form, and the employees of the Little Sisters still get full coverage (and possibly contraceptives!) as mandated by the Affordable Care Act, and the Little Sisters, bless their souls, are no longer accessories to sin.
To anyone not educated by Jesuits, this appears to be picking at nits, but MBD assures us it’s important:
The Little Sisters' objection may seem like a small thing to an outsider, but in cases of religious burdens, it almost always does. Roman authorities wanted religious dissenters to merely throw smoke at idols of Caesar; they didn't ask for true belief in him. Henry VIII wrote a niggling, lawyerly form to swear loyalty to him above the pope.
So MBD, who mocked “legal commentators” who claimed (supposedly) that a victory in court for the Little Sisters would “thrust [us] into the darkness of theocracy,” now compares the contraception mandate to the Roman insistence on sacrificing to Caesar, and suggests that a defeat for the Little Sisters will be as consequential as Henry VIII’s break from Rome.
I have no idea how this issue will play out in the Supreme Court. I do know, however, that the “niggling, lawyerly” solution MBD advocates makes it clear—again, to those of us not educated by Jesuits—how little, really, is at stake. When Jesus was asked about paying taxes, and he noted the image of Caesar on a coin, he said “Render unto Caesar what is Caesar’s”; he did not say, “Render unto Caesar what is Caesar’s, but do not do so directly; rather, in order not to be an accessory to sin, make sure you have an ironclad third-party workaround.”
There are many things for which the Little Sisters of the Poor ought to be praised, admired, and emulated; this lawsuit isn’t one of them.
1 Unless, of course, you happen to believe that it's automatically a sin to commit a crime--any crime, including jaywalking or violating a local noise ordinance--because of the implicit defiance of authority.