As they say in politics, the optics are bad in this one.
A legal expert on my radio show this week said their firm, extensively involved in lawsuits against the administration's HHS mandate, said they were frankly surprised that the administration continued to push forward on the unprecedented mandate after the 2012 election at all, much less pushing it vigorously and committing teams of lawyers to defending it in courts across the country in 91 different lawsuits representing institutions, corporations, small business owners and individuals. But they have.
It was always destined to go to the Supreme Court, and will in March, since the high court decided to hear two key cases involving what some call the 'contraceptive mandate' and others the 'contraception delivery scheme mandate'. It's stayed off the public radar for the most part, largely due to media ignoring it and Americans being inundated with so many other cases of big government overreach, in other areas.
That hasn't stopped the vigorous movement to hold off, reverse, overturn, or declare unconstitutional the Obamacare HHS mandate. It's all here.
Including the New Year's Eve ruling by Supreme Court Justice Sonia Sotomayor in favor of the Little Sisters of the Poor, who were hesitant to even go to court, their lawyers tell me. They'd rather be doing everything they've done for 175 years to take care of the sick, elderly, dying, and just caring for people. They didn't want this fight. But they won't give up on it the way they never give up on the sick and needy.
The Wall Street Journal reports:
The Little Sisters of the Poor run a nonprofit Colorado nursing home and hospice and therefore ought to be exempt under what the White House calls its "accommodation" for religiously affiliated institutions like parochial schools, hospitals and charities.
The problem is that to qualify under the "accommodation," religious organizations must sign a legal contract with their insurer certifying that the religious organizations refuse to subsidize contraceptive services. "This certification is an instrument under which the plan is operated," the contract notes, then informs the insurer of its "obligations" under the rules.
Those include a command that the insurer "shall provide" contraception to all enrollees, supposedly independently and for free. The political point of the accommodation was to pretend that the costs of contraception or abortifacients are nominally carried by a third-party corporation, but the insurers are really only the middle men. The Little Sisters thus argue that signing the certification contract directs others to provide birth control in their place and makes them complicit.
Boiled down, the Justice Department's legal response on Friday was: Shut up and sign the form.
Yes, 'it's just a piece of paper,' they contended.
Within hours, dozens of news stories appeared online that put the sisters at the center of a contentious national debate on what constitutes strong-arming a religious congregation to provide contraceptives and other abortion-inducing drugs to its employees.
The sticking point for both sides is a waiver/authorization form that the Little Sisters must fill out to take advantage of a so-called accommodation for non-profit ministries. The form, however, has a dual purpose - it signals opposition to the mandate, but also authorizes a third-party to provide the services it finds morally objectionable.
"The Little Sisters and other applicants cannot execute the form because they cannot deputize a third party to sin on their behalf," stated the Becket Fund, which represents the Little Sisters, in a brief responding to the Obama administration. The group added that the administration is "simply blind to the religious exercise at issue."
The Obama administration minimalized the importance of the form, enticing the Little Sisters to "secure for themselves the relief they seek" …"with the stroke of their own pen."
Mark Rienzi, senior counsel for the Becket Fund who filed the lawsuit on behalf of the nuns, said in a statement Friday that the administration was "trying to bully nuns into violating their religious beliefs."
If the sisters don't sign the waiver/authorization form, or if the courts don't uphold the injunction, they could be subject to devastating IRS penalties that could add up to millions of dollars a year.
As Fr. Dwight Longenecker notes, we've seen this scenario before.
Where have we heard this before? Henry VIII and the Act of Supremacy. In November 1534 the English Parliament decreed that King Henry VIII was the "only supreme head on earth of the Church of England." Everyone who held public office had to take the oath of supremacy, and most did. After all, it was "only a few words…only a pen stroke if you like…only a piece of paper." At first the authorities even made it easier for people with tender consciences. A clause was added to the claim that the king was the head of the church: "insofar as the law of God allows." Many of the clergy took the oath while they kept their fingers crossed with the compromise clause.
Once they got most to comply the compromise clause was removed. Those who had compromised now found that they had sworn the oath in the original form and they were held to it. When Henry's illegitimate wicked daughter Elizabeth came to the throne the Oath of Supremacy was extended to schoolteachers, local authorities, university students - virtually anyone in any position of authority. To refuse to take the oath was treason, and the oath was demanded by the officers of Elizabeth's police state.
The issue here is of the tactics used to suppress opposition. An oppressive government will insist that those with religious objections conform. They will say, "It is only a piece of paper. It is a mere pen stroke. What harm can there be in taking this way out we have offered you?" However, if it is a mere pen stroke or only a piece of paper, then why does the government insist on conformity of the Little Sisters of the Poor? If it is only a piece of paper or a pen stroke, why bother? Because it is most assuredly not a mere piece of paper or a pen stroke. It is the violation of the sister's conscience by the government authorities. Why does the federal government insist on this detail? Because they know that if one group is allowed to have an exemption on religious grounds, then all groups may claim a similar exemption because of religious beliefs.
If this religious belief is honored, then every other religious belief on every other issue must also be honored. What is at stake in this argument, therefore, is not the comparatively minor issue of whether some Catholic sisters should authorize a third party to pay for contraceptive services, but whether any group, individual or business has the right to opt out of a government program which imposes on their lives and their beliefs. This government, like Henry VIII's and Elizabeth I's and all other tyrants, says "No. The will of the state takes precedence over religious opinions. You will conform."
Archbishop Joseph Kurtz, newly elected head of the US bishops conference, the body which found unusual unanimity in standing against this violation of religious freedom and basic conscience rights, explains.
Pope Francis inspires Catholics and non-Catholics alike with his focus on the gospel call to serve "the least of these."
Our faith calls us to put first the needs of our brothers and sisters who suffer in poverty, and Catholics are justly proud of our network of schools, hospitals and social service ministries that work every day to help the poor and vulnerable.
Yet the ability of these ministries to live out the fullness of our faith is in jeopardy.
The mandate from the Department of Health and Human Services forces countless Catholic schools, hospitals, and social service organizations to participate in providing employees with abortifacient drugs and devices, sterilization, and contraception in violation of Catholic teaching. The mandate went into effect on Jan. 1; ministries now are faced with the choice of violating our deeply held beliefs or paying crippling fines.
If these ministries don't comply, the financial penalties may mean that some may have to close their doors. As that happens, the poor and those who serve them will be hurt the most. Forcing our ministries to divert funds from serving their neighbors to paying government fines will have real consequences for real people.
Archbishop Kurtz, a wise, kind, gentle and devoted shepherd, is trying to strike the right balance while serving needs justly.
We have spent significant time and effort seeking sincere dialogue with the Obama administration in hopes of preventing this impasse, and we are long-standing advocates of accessible, life-affirming health care. Yet our concerns continue to go unheard. The administration has crafted an "accommodation" that continues to compel our ministries to participate in providing drugs and services that violate our deeply held religious beliefs.
With the implementation date now upon us, we have made one more effort at dialogue, again asking President Obama to exempt nonprofit institutions caring for those in need from the harsh penalties imposed by the mandate.
The administration has shown flexibility in implementing other provisions of the Affordable Care Act, issuing numerous delays and exemptions for many employers and individuals.
We're only asking that it offer that same consideration to those who want to live by their religious beliefs without facing government penalties for doing so…
On behalf of those served by our schools, hospitals and social service ministries, we will continue to resist the burdens imposed by the HHS mandate.
We hope and pray that the administration and Congress will protect us from those burdens, and that the courts will uphold our freedom to serve those who depend on us.
Some members of Congress are trying, relentlessly, to protect conscience rights and religious freedom. They need support and encouragement. Though everything is not political, everything is made political. In that world, the term 'optics' is often applied to actions that will be reported on and judged by the public.
The Little Sisters of the Poor in court seeking protection from administration lawyers is not good optics. To say the least.