Why The Appeals Court Ruled Against Little Sisters
The Tenth Circuit Court of Appeals has ruled that the Little Sisters of the Poor have to comply with the Obama administration’s “HHS mandate” on contraceptives, as modified by its “accommodation” for religious non-profits. I have only read part of the published opinion, but I believe the court is making a distinction between what they see as a legitimate objection to providing insurance that covers contraception, abortion, etc., and the act of completing and filing a government form letting the government know that the group objects to providing such insurance coverage because of religious beliefs. The Hobby Lobby decision was based on the first requirement (without the accommodation) which the Supreme Court ruled an undue burden on religious belief. The Little Sisters decision was based on the second (with the accommodation) or that the filling out of a government form is not an undue burden. Additionally, The Hobby Lobby ruling was in regards to a private company while publicly traded companies and non-profits like Little Sisters for the Poor weren’t covered in that ruling.
What the Little Sisters really want is the ability to prevent their employees from having access to birth control. RFRA and the Constitution certainly don’t give them that right. They’re not being required to use birth control, they’re not being required to buy their employees birth control, they’re not being required to provide insurance to their employees that cover birth control. Their problem is that by filling out a form exempting themselves from the provision of insurance that covers birth control, they are indirectly triggering secondary coverage (that they in no way pay for) that does cover such birth control. There is no difference between that objection and demanding the right to prevent employees from spending their salaries on the purchase of birth control.
On the other hand, lower courts still seem to have difficulty reconciling the cause and effect of the Little Sisters initiating notification to the government having the same result as having it included in the employees’ policies. The third party insurance providers will most likely price in this coverage to employers like Little Sisters for providing this service. I support abortion, contraception and think everyone should have unlimited and unfettered access to both, but as this rises through the court system, the government can say all they want about insurance having to bear the burden of cost for the coverage, but we know that is not going to happen.