NC Family president John Rustin talks with Helen Alvaré, JD, professor of law at George Mason University and founder of Women Speak for Themselves, about the U.S. Supreme Court’s May 2016 opinion in Zubik v. Burwell, and what that ruling means for the Little Sisters of the Poor and other religious nonprofits.
INTRODUCTION: Helen Alvaré, JD, is a professor of law at George Mason University, and the founder of Women Speak for Themselves. She is a consultant to Pope Francis’ Pontifical Council for the Laity, as well as a consultant to ABC News. Additionally, Helen is Chair of the Conscience Protection Task Force at the Witherspoon Institute.
Helen wrote an amicus brief on behalf of the Little Sisters of the Poor in the in the Zubik v. Burwell religious liberty case before the U.S. Supreme Court. The Supreme Court issued an opinion in that case on May 16, and we are going to be talking with her about that opinion, and what it means for the case, and for the Little Sisters of the Poor in particular.
JOHN RUSTIN: Helen, before we talk about the Supreme Court’s opinion in this critical religious liberty case, tell us briefly if you would about Zubik v. Burwell, and why the Little Sisters of the Poor and other religious nonprofits challenged the federal government’s contraceptive coverage mandate.
HELEN ALVARÉ: It was in February of 2012 that the Department of Health and Human Services—I’ll just call them HHS—issued a regulation that said churches didn’t have to provide contraception and some early abortifacients like the “Morning After Pill,” but it [also said] that religious institutions that were not churches, like old age homes, schools, and hospitals, they had to provide it. Then, they later issued a correction that said, “All right, we will accommodate you in the sense that you fill out a form that says, here’s my insurance plan and here’s the employees that are covered, and you put the contraception in my insurance plan for my employees, and by the way also for your minor daughters, and you educate them, you send stuff to their house, educate them via mail or email about contraception and abortion, in connection with my healthcare plan.” I think it was actually more Evangelical than Catholic… and possibly other religions as well filed lawsuits and said, “This is a violation of our religious freedoms. We are facilitating the provision of something that goes against our faith, and by the way if we don’t pay, you’re going to fine us $100 per day, per employee.” So, for instance the Little Sisters of the Poor, a group of nuns that actually gets by 100 percent on begging, they were told, “We’re going to fine you $70 million a year unless you provide contraception.” So that’s the origin of the lawsuits…
JOHN RUSTIN: The Supreme Court heard oral arguments in the Zubik case on March 23 of this year, and then not long after that, on May 16, the Court responded with a somewhat unusual request for both religious nonprofits and the government. Tell us about the Court’s request, and what it means for the future of this case.
HELEN ALVARÉ: Right. So, it is very interesting and rarely done. Supreme Court experts could tell you it’s been done a few times before. But it seems that the Court was trying to avoid a loss, that’s how I read the tealeaves. They were also trying to avoid making law where the Court is only eight justices, and it was maybe split 4-4 on parts of the religious freedom claim and maybe split 5-3 on other parts. And I do think there’s an element here of not wanting to see the government hauling off the Little Sisters in cuffs! I think that had to play a role. What [the Court] said is, “Listen, government, you’ve got this entire set of exchanges where you give healthcare policies, you’ve said along the course of this case that women get contraception from some of the hundreds of community health centers that are funded by state money. They get it at Planned Parenthood, which the government also funds too. They’ll get it through a spouses plan, and they’ll get it over-the-counter. You’ve talked about many ways in which women can get contraception other than what the Supreme Court at oral argument occasionally referred to as ‘Hijacking the Little Sisters’ plan.’ Why don’t you tell us about another way that you could get contraception to these employees and their minor daughters? And then we’ll have the Little Sisters and the other plaintiffs respond and see if we can’t come to some agreement here.” So, the government filed a brief where it was very grudging, and it basically said they already were using what they called the “least restrictive means,” that is the means least pressuring religious freedom in order to deliver contraception to these women and girls. And the Little Sisters and the other plaintiffs came back and said, “Oh we can think of about eight different ways you can do it, and here’s a bunch of them!” And that gave everybody the idea that the Supreme Court was first of all believing the Little Sisters in their claim that this mandate did constitute a burden on their religion, and that they were not convinced that the government’s existing program was the least restrictive means of realizing its desire to funnel contraception to women and girls for free.
JOHN RUSTIN: For the benefit and understanding of our listeners, I know that many of them are familiar with the Hobby Lobby/Conestoga Wood case that dealt with similar Religious Freedom Restoration Act (RFRA) claims against the Affordable Care Act contraceptive mandate. How does this consolidation of seven different cases differ from the Hobby Lobby case?
HELEN ALVARÉ: First, Hobby Lobby was a for-profit corporation. They are not a religious order or an explicitly religious university or other institution. They are religious people who got together and formed a corporation that as part of it, I think it’s bylaws, states that we’re religious people, and we want to use our corporate work in order to serve God. And so they have all kinds of practices that avoid collaboration with things they regard as problematic because of their Christian faith. But Hobby Lobby was about for-profit corporations, whereas all these cases consolidated with the Little Sisters were all about explicitly religious institutions. The other thing was that Hobby Lobby had to confront the question: can a corporation, can an incorporated entity be a person who practices freedom for purposes of getting protection for their religious freedom? And so they were really interesting questions, and they were settled in favor of Hobby Lobby. The Court said, “Yes, corporations can have religious purposes.” In fact, there were some terrific briefs filed in Hobby Lobby that showed that the those who settled the US, some of the corporations involved, the East India Tea Company, these other British and other corporations that funded the ships that came over here and invested in the United States actually had as part of their purpose to build a Christian nation, to proselytize, to spread Christianity to new soil. Plus, the language of the religious freedom statute that was being used in the Hobby Lobby case was very explicit about corporations being Christian. The government was trying to take the position that once you incorporate, you give up your individual religious freedom, and they said, by the way, corporations had none. So, the Supreme Court was not very happy with the federal government on that; it said, “Wait a minute, so anybody who wants to, for purposes of building a business, to take the corporate forum has now given up their personal religious freedom? Really?” Anyway, the government lost that and Hobby Lobby won, but remember that Hobby Lobby also won, remember that Hobby Lobby also won by contesting only abortificacients, and they did not have a problem with regular contraception, they only had a problem with those forms of drugs and devices that while they’re called contraceptive can, and the government admitted this, destroy human embryos.
JOHN RUSTIN: Interesting. Some important distinctions, and thank you for that explanation, I think that’s very helpful to understand. Now Helen, I know that some have characterized the SCOTUS opinion in the Zubik case as a “smack down,” of sorts, of the government’s contraceptive coverage mandate. Would you go that far as to agree with that characterization?
HELEN ALVARÉ: For the moment, because of the government’s obsession with contraception! I was at this wonderful conference this week with a variety of religious groups, and one of the things they pointed out was the faith equality business has been very good for this Whitehouse. So, they go guns blazing, “If women don’t have contraception, they’re not really free, they don’t have social equality, they’ll never make it in this economy, they’re going back phoneless, dateless, 1700’s!” The government is obsessed with contraception and sexual expression free of children. It’s just so evident; that’s their main agenda, and I think it distracts people from what say they are maybe not doing on other issues, especially for women and families, but I digress.
The government is so obsessed, it seems to me, that although the court in the recent decision sent these cases back below and said “We vacate,” that means we get rid of the opinions at the courts of appeals. By the way, the religious institutions lost most of those cases, [but the Court] got rid of all of them, both the lawsuits and the one win, and they said we now, because of the supplemental briefing, have a somewhat better idea regarding ways that the government can deliver contraception to women and girls working for religious institutions with less restriction on religious freedom. Now they sent it back thinking that the government would settle with these institutions, or maybe just rewrite its reg. I mean you realize that with just a flip of his little wrist Obama could have made all of this go away? With the hundreds of millions of dollars that his administration has spent trying to run the Little Sisters to ground and even Evangelical colleges and all these other groups, he could have contracepted every woman and girl in America three times over, but that obviously was not his point. The point was to bring religion to heel, and so it is not clear to me that he will settle these cases at the courts of appeals. He may continue to argue, “Alright, even with this new round of supplemental briefing clarifying other ways to get contraception to women and girls through these religious institutions, we still think that Little Sisters lose.”
Now the “smack down” part of the opinion is this: the government was actually arguing that the Little Sisters didn’t have any religious freedom complaint at all because they weren’t even burdened. That having to give the government information so that the government can attach drugs and devices against their religion to their insurance plan was not a violation of their religion. Why not? Well, because the government said it wasn’t, and the government was arguing that it gets to decide whether your religious exercise is burdened, and that is a very frightening thing [that] the government can tell the Little Sisters, “You’re confused about your theology, we’ll let you know when your conscience is burdened.”
It seems to me, although the Courts were up and down in it’s short opinion, that it did not take a holding on this question, [of whether] the government or the Little Sisters get to decide, that there was enough of a vote to find a burden, otherwise I don’t think they would have sent the case back down, they would have just said there’s no burden, the case can’t go forward. The other thing about this is even though they swore up and down they weren’t making a finding on “least restrictive means,” clearly, the Court wouldn’t have asked for supplemental briefing or sent it back down if they didn’t think that something in the supplemental briefs supplied a means less restrictive on religious freedom to deliver contraception.
JOHN RUSTIN: Helen, I know you’ve worked closely with the Little Sisters of the Poor throughout this process and this case… And we will certainly continue in prayer for a great outcome as the lower courts revisit this issue and make a ruling, hopefully in a very favorable way for the Little Sisters of the Poor and the other organizations that are involved in this case.
Before we leave, I want to give you an opportunity to let our listeners know where they can go to learn more about the Little Sisters of the Poor case, and also about your organization Women Speak for Themselves.
HELEN ALVARÉ: Thank you. It’s www.womenspeakforthemselves.com. Our motto is “Empowering local intelligence.” We know that things get done locally by real women, like in the pro-live movement, which women kept alive all these decades for the most part. We want to do the same thing for religious freedom and for a notion of women’s freedom that is actually in line with women’s experience.