Tom Campbell, Big Brother should leave Little Sisters alone, Orange County Register

Later this year, the U.S. Supreme Court will hear the challenge of the Little Sisters of the Poor to President Obama’s health care law. The Little Sisters religious order takes care of the elderly poor. Consistent with their faith, they don’t want their employees to use contraception. Their complaint is that, in order to obtain exemption from the health care law’s requirement of contraceptive care, they have to make a filing with the federal government. That triggers the obligation of their insurance company to pay for the contraceptive care instead. Even though it won’t cost them, the Little Sisters want no part in it.

The law on which the Little Sisters rely has a very bipartisan, even liberal provenance. In 1993, then-congressman, now Sen. Charles Schumer introduced the Religious Freedom Restoration Act. His bill gathered 170 co-sponsors, passed the House on a voice vote, passed the Senate 97-3 and was signed into law by President Bill Clinton.

RFRA begins by criticizing a 1990 U.S. Supreme Court opinion written by Justice Antonin Scalia, which allowed Oregon to deny unemployment benefits to two Native Americans who had been fired for using an illegal drug, peyote. Congress was outraged that Oregon did not make an accommodation for the fact that the peyote was taken in a religious ceremony. Of course, Oregon had a decent argument: enforcing its drug laws. That was enough for the court to uphold Oregon’s action, but not for Congress.

After RFRA, a state not only needed a compelling interest if it substantially burdened a person’s exercise of religion, it needed to use the least restrictive means there was of vindicating its interest. So, Chuck Schumer reversed Justice Scalia.

Now, it’s possible Justice Scalia will reverse Chuck Schumer – and all others who support the Obama administration’s demand that the Little Sisters make a filing – if he can find four other justices. He did so last year in the Hobby Lobby case, where a business resisted on religious grounds the Obama health care law’s requirement that it offer contraceptive care to its employees. Hobby Lobby relied on RFRA and won. Chuck Schumer’s law, inspired by a desire to respect Native Americans’ religious practices, has now become an engine for demanding exceptions to laws of general applicability, even without any intent to harm religion, that nevertheless don’t make allowances for sincerely held religious views.

The decision in this new case will come down to whether requiring a form to be filled out is a substantial burden on the Little Sisters’ exercise of religion, and, if so, whether there are less restrictive means of accomplishing the administration’s goal that health insurance policies required by law include contraceptives.

RFRA passed with such an overwhelming majority because it expresses a very healthy view of government: “Leave us alone, unless you have a very good reason, and then bother us minimally.” It’s not a bad instruction for laws in general, not just those that touch on religious practices.

Though all but one of the lower courts found the filling out of a form minimally, not substantially, burdensome to religious exercise, I’d let the Little Sisters make the call here. It’s a dangerous undertaking for government to decide how important a practice is to a religion. The Little Sisters aren’t trying to stop the contraceptive mandate upon others; they just don’t want to take part in bringing it about for their employees. They want to stay silent. Thomas More wouldn’t sign his name on a document approving Henry VIII’s claim to be head of the Church in England. He just wanted to stay silent. Was it worth dying for? The most populous church in America holds him a saint for doing so.

Are there less restrictive means to accomplish the purpose of providing contraceptive care to American working women? There appears to be a market solution. The Obama administration maintains that contraceptive care actually saves insurance companies money. This is because the cost is a tiny fraction of the cost of a pregnancy. The University of Pennsylvania’s Annenberg Public Policy Center carefully analyzed that claim and concluded that, while not free from doubt, it might very well be right. So let the insurance companies provide contraceptive care, as it is in their best interest to do so, and leave the Little Sisters of the Poor alone.

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