Depending on whom you ask, last Friday the Supreme Court either slightly helped, slightly hurt, or did pretty much nothing at all, with respect to the ongoing claims of the Little Sisters of the Poor and their challenge to the contraception mandate component of the Affordable Care Act. In a one-paragraph, unsigned order the high court told the nuns who object to filling out government form 700—a form that, if signed, would affirm their objection to covering contraception for employees—that they can instead fill out a court-crafted government form affirming pretty much the same thing.
The substitution of the court-ordered form for the Obama administration form has led more than one commentator to point out that the “Sisters don’t have to fill out the specified government form, but they do have to fill out a form that says exactly the same thing.” In a case pitting the religious freedom of the nuns against the rights of American women to affordable health care, the fact that nobody agrees whether and if the Supreme Court’s new order actually changes anything for the Little Sisters, highlights one basic underlying fact: It remains fundamentally unclear to most of us what part of the self-certification process the nuns, and the other plaintiffs in the various challenges, actually object to.
Recall that the form certifies that “on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered, [that] the organization is organized and operates as a non-profit entity and [that] the organization holds itself out as a religious organization.”
As Emily Bazelon has carefully explained, in the abstract, most-symbolic sense this case is about religious freedom. But in its most concrete form the case is more and more about whether religious not-for-profits, in filling out a two-page document declining to offer contraceptive coverage, are somehow triggering someone else’s coverage of that same thing. And as we have seen the case play out, it quickly becomes an almost existential debate about whether the religious objectors are being forced to somehow support the providing of contraception, or being granted the right to opt out of a system that provides it.
What’s been lost in a good deal of the media coverage is whether the religiously objectionable act here lies in the actual physical filling out of the form, the corresponding actions triggered once the form is filled in, the general appearance of endorsement of contraception that happens when the form is signed, or the compelled speech. Because accounts of the religious burden on the Little Sisters can sometimes careen back and forth between all of the above, it’s easy to suggest, as Planned Parenthood President Cecile Richards did in a statement last week: “This is a case about paperwork, not religious liberty.”
Until and unless we can understand precisely what the nuns object to, the case is almost impossible to analyze—and that means looking carefully at the self-certification form, and at the pleadings in the case. In its brief, the Little Sisters of the Poor lay out the impermissible religious burden upon them as follows: “[T]he Catholic Church teaches that a post-conception contraceptive is an abortifacient and gravely contrary to moral law.” Moreover, “The Catholic Church also teaches that contraception and sterilization are intrinsic evils.” It adds that “the Compendium of the Social Doctrine of the Church provides that ‘[a]ll programmes of economic assistance aimed at financing campaigns of sterilization and contraception ... are to be morally condemned as affronts to the dignity of the person and the family.’” It goes on to argue that “By delivering its self-certification to the third party administrator of the Christian Brothers Trust,” it “would trigger the third party administrator’s obligation to “provide or arrange separate payments for contraceptive services directly for plan participants and beneficiaries.” (One unforeseen wrinkle in this case is that Christian Brothers Services is also exempt from the contraception mandate, meaning that Little Sisters’ employees won’t get contraceptive coverage even if the form is filled out.)
In sum, says the pleading, “the Little Sisters Homes are forbidden by their Catholic faith from participating in the government’s system for providing coverage for contraceptives, sterilization, abortion-inducing drugs, and related counseling and education, for its lay, and other employees, both lay and clergy. The Little Sisters Homes cannot pay for such benefits. They cannot provide paperwork that will trigger such benefits. They cannot designate another party to provide such benefits. They cannot make certifications that would create a duty for Christian Brothers Services to provide such benefits. Simply put, as a matter of religious faith, the Little Sisters Homes may not participate in any way in the government’s program to provide access to these services. Doing so would not only directly violate their obligations and vows, but also would risk leading others astray.”
That looks like it’s about a lot more than paperwork. The claim here is that this is about participating in any fashion in a system that condones contraception. It’s about payment, authorizing payment, designating alternate payors, creating duties in others, or even participating in a government system that offers birth control coverage.
As Lyle Denniston summarized earlier this month, the nonprofits that are suing in the numerous cases before the courts believe that the form “puts them at the start of a chain of events that leads inevitably to mandated coverage of the disputed services. That filled-out form, they contend, simply ‘deputizes’ a plan operator to provide the services.” Kevin Walsh explains it like this: “The government's insistence that the Little Sisters just sign the form misses the point. Signing the form is part of the problem, not a solution.” Further, as Walsh explains, “Beyond an authorization, the form is also a directive that triggers the imposition of legal obligations.” So the burden is the form itself but also what the form authorizes. In other words, it’s both.
U.S. District Judge Lee Rosenthal—one of the Texas judges who sided with the religious objectors in one of the contraception mandate challenges—explained the religious burden this way: “The self-certification form requires the organizations to do much more than simply protest or object. The purpose of the form is to enable the provision of the very contraceptive services to the organization’s employees that the organization finds abhorrent.” In short, the opt-out form is, in reality, an opt-in form, since the coverage is triggered regardless.
Marty Lederman has taken exactly the opposite position in explaining the act of signing the form. He has responded to what he sees as a circular claim (in this case by Notre Dame making the same basic argument as the Little Sisters in a different challenge) that opting out of covering contraception legally means opting into it, by explaining that such a theory would preclude ANY religious accommodation:
The whole point of the accommodation is that the opting out by the objector would shift the responsibility to someone else (whether a state actor or, as here, another private party) to do what the religious objector declines to do. But if that is enough to establish a substantial burden on Notre Dame's religious exercise, then it would effectively mean that governmental religious accommodations taking the form of "opt outs" for dissenters would themselves often create the very conflict with religion that they are designed to alleviate… For example, take a law that permits individual religious pharmacists to refuse to dispense certain drugs, and that provides that in such a case the drugs shall be dispensed by a nonobjecting pharmacist. Under Notre Dame's theory, the first pharmacist could object to the accommodation—and insist that customers not receive the drug at all—because its refusal to dispense would "trigger," or "authorize," the second pharmacist to commit a morally objectionable act.”
It’s kind of like pregnant angels on the head of a pin. The nuns argue they cannot cause contraception to be offered. The government says that it’s the government causing contraception to be offered and that the nuns are indeed being afforded the right not to participate. Extending the Little Sisters’ argument about agency means that so long as any employee obtains contraception in any fashion, the sin is done. This undermines the entire principle of religious accommodation, which is supposed to protect the conscience of the religious objector but not violate the rights of everyone else.
Part of the problem with the case is that these are not purely legal, or even wholly logical, arguments. The nuns, after all, say they are answering to a higher authority, or—as they put it in their reply brief in the case—the government’s “minimalist characterization of the form” should not be permitted to control the “Little Sisters’ religious determination about whether they can execute the form.” The Little Sisters reject the government contention that the form is an opt-out. Why? Religious doctrine. And somewhere in the interstices of religious doctrine, an ephemeral combination of signing this form, greenlighting its consequences, endorsing the idea of such coverage, and putting it all into writing, there lies, in their view, a violation of religious law. In other words, the two parties to this case are talking right past one another, and that puts the courts in a very precarious position. This isn’t just a fight over what signing the form means, it’s a fight about who gets to decide what fighting over the form means: Barack Obama or God? And who wants to be the judge of that?