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Today is the deadline to file comments on the HHS Mandate Notice of Proposed Rulemaking. Among the many groups commenting today are the Little Sisters of the Poor. Their comments filed today are available here, and their prior statements on the HHS Mandate are available here and here.

As this 2005 Wall Street Journal article explains, the Little Sisters of the Poor have “an odd business plan” for their homes for the elderly poor: “Beg for help, lavish it on residents.” But more confounding than the Little Sisters’ business plan is the idea that the federal government would force them to arrange their health coverage for their homes’ employees to ensure coverage of female sterilization and the free flow of all FDA-approved contraceptives, including abortifacient drugs and devices.

President Obama is a college sports fan, but he should know better than to think that the Little Sisters of the Poor are simply “a euphemism in college sports to describe a weak opponent.” The Little Sisters are real; the HHS Mandate burdens their religious exercise; and the Obama Administration has the power to lift that burden. Lifting that burden is also the President’s duty under federal law.

Some excerpts from the comments:
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On May 13, 1992, ACLU National President Nadine Strossen appeared before the House Judiciary Committee, Subcommittee on Civil and Constitutional Rights, to testify in support of the Religious Freedom Restoration Act. (Interestingly, the Obama Administration’s former Domestic Policy Advisor, Melody Barnes, also attended, as assistant counsel to the subcommittee). Strossen’s prepared testimony, now included in the legislative history of the RFRA, includes a litany of examples showing how, “[i]n the aftermath of the Smith decision, it was easy to imagine how religious practices and institutions would have to abandon their beliefs in order to comply with generally applicable, neutral laws.” Among other threats to religious practices and institutions, Strossen observed that “[a]t risk were such familiar practices as . . . permitting religiously sponsored hospitals to decline to provide abortion or contraception services . . . .”

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Linda Greenhouse’s Opinionator column today addresses “the escalating conflict over the new federal requirement that employers include contraception coverage without a co-pay in the insurance plans they make available to their employees.” The most interesting aspect of the column is what is missing from its legal analysis: any consideration of all the other ways that the Administration could ensure widespread access to low-cost contraception without violating the religious liberty of religious objectors. Perhaps one shouldn’t be surprised that the “tags” for the column are “birth control” and “Roman Catholic Church,” rather than “religious liberty” or “conscience.”

After beginning by criticizing the rhetoric of mandate opponents and noting the silence of mandate supporters on the question of conscience, Greenhouse states that “the purpose of this column is to examine the conscience claim itself, directly, to see whether it holds up.” But Greenhouse’s framing of the analysis reflects a basic misapprehension of the legal protections for religious liberty already embedded in federal law. Greenhouse writes that objecting religious institutions claim “a right to special treatment: to conscience that trumps law.” That is wrong: the objecting religious institutions claim that the mandate violates federal law. They do not argue that conscience “trumps law.” Far from placing conscience over law, the objecting institutions advance a claim under the law.

After misframing the issue as whether conscience trumps law, Greenhouse devotes two paragraphs to explaining why “that is not a principle that our legal system embraces.” These two paragraphs discuss the Supreme Court’s discussion in Employment Division v. Smith, a 1990 decision authored by Justice Scalia. Only after discussing Smith does Greenhouse turn to the Religious Freedom Restoration Act (“RFRA”). In the journalism business, this is known as burying the lede. The RFRA is where the principal legal action will be in the lawsuits challenging the contraceptives mandate.

Having submerged the real legal basis for the objectors’ claims, Greenhouse then leaves out the part of the RFRA‘s test that will be hardest for the Administration to satisfy. The RFRA provides that the federal government cannot substantially burden the exercise of religion unless doing so is the least restrictive means of accomplishing a compelling government interest. Yet Greenhouse’s discussion contains no mention at all of the “least restrictive means” part of the test. Instead, Greenhouse says that a RFRA challenge “would pit the well-rehearsed public health arguments . . . against religious doctrine.” The omission is telling, because the weakest part of the government’s case will be this least restrictive means requirement. There are so many other ways for the federal government to accomplish its objectives that it should lose the RFRA claims on precisely this point.

Earlier in her column, Greenhouse notes the lack of a “full-throated defense” of the contraceptives mandate, “except on pure policy grounds.” The best explanation for the silence of the mandate supporters with respect to religious liberty may be the simplest: nobody likes to pick a fight that they cannot win.

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America Magazine has a post by law professor Doug Kmiec setting forth how President Obama can “confess error” in requiring Catholic organizations, and others morally opposed to contraception, to provide insurance coverage for that to which they are morally opposed. The statement that Kmiec would advise President Obama to deliver includes the following:

Recently we made a mistake. While the constitution doesn’t mandate religious exemptions from general laws, I believe we should accommodate as many beliefs as possible and to the greatest extent possible without jeopardizing the purpose of the law.

The focus on the Constitution alone is curious. The Religious Freedom Restoration Act, or RFRA, requires that federal laws and regulations adhere to something akin to the “belief” about accommodation that Kmiec would have President Obama articulate. The need to accommodate need not rest on anything as ephemeral as President Obama’s faltering beliefs about religious liberty. There’s a federal statute for that.

The RFRA claim should come as no surprise. It is the lead claim in the Belmont Abbey case brought by the Becket Fund. And as far as I can see, it’s not even a close question whether the HHS mandate runs afoul of the RFRA. Perhaps I haven’t been paying enough attention, but I’m surprised at how little press the RFRA violation has received. For example, the recent Los Angeles Times article by David Savage that explains why the contraceptive mandate could face difficulties if it ever reached the Supreme Court discussed First Amendment jurisprudence but not the RFRA.

(In writing up this blog post, I came across several posts (here, here, here, here, here, and here) by Ed Whelan at National Review Online’s Bench Memos explaining why the mandate violates the RFRA. I’d be grateful for pointers to any responses, for as mentioned, I do not see how this is a close question.)

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The trend regarding state mandates toward religious organizations is to offer a very narrow statutory exemption from these laws for a subset of such entities, mainly parishes, while requiring all other organizations—religious schools, charities, hospitals, universities—to bow to secular laws and requirements. The argument is that these activities are “secular” in nature, and that the churches engaged in them may not bring their religious beliefs to bear on these properly secular activities. There is a concerted effort on the part of Planned Parenthood, the ACLU, and some labor unions to eliminate Catholic ethical and religious control over Catholic hospitals, charities, nursing homes, and other facilities. If this effort is successful in bringing the courts to tell the Church which of its ministries are Catholic and which are not, then the Catholic Church (along with other religions) will be forbidden to respond to the Lord’s command to serve the poor, the sick, and the abandoned in his name. Such laws will not be held to violate the free exercise clause so long as they have no discriminatory purpose. In other words, consistent with the free exercise clause, the state could require hospitals to perform abortions so long as it imposed this requirement on all hospitals.

From Francis Cardinal George, God in Action: How Faith in God Can Address the Challenges of the World

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