Obamacare and the Travail of the Little Sisters

Last week, the Supreme Court heard oral arguments in the Little Sisters of the Poor’s legal challenge to the Obama administration’s mandate on contraception and sterilization coverage in health insurance plans. The Little Sisters’ attorneys argued that the so-called “accommodation” for religious organizations—put in place by the Department of Health and Human Services ostensibly to shield those organizations from providing services to which they conscientiously object—in fact implicates those organizations in the provision of those services, and violates their First Amendment rights.

Though ethically opposed to the government’s goal of providing coverage for contraceptive services, the Little Sisters and their co-petitioners do not challenge the legality of the effort; they simply ask not to participate in that objective. While being subjected to the burden of massive government fines for refusal, the petitioners believe that cooperation with the provision of coverage for those objectionable services—or submitting documentation that initiates the coverage—is a violation of their religious freedom. Furthermore, the petitioners contend that the government can arrange methods for providing contraceptive services without cost-sharing to employees by means that do not violate the employers’ religious beliefs and moral objections.

Just days after the conclusion of oral arguments, the Supreme Court issued an unusual order requiring all parties in the dispute submit additional legal briefs “that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.” This development was generally viewed by the plaintiffs as a positive one.

A history of the Little Sisters’ case

Section 1001 of the Affordable Care Act—signed into law by President Obama on March 28, 2012 and popularly termed “Obamacare”—amends the Public Health Service Act of 2012 to add minimum coverage provisions for group and individual health insurance plans, including, “with respect to women, such additional preventive care and screenings not described…in comprehensive guidelines supported by the Health Resources and Services Administration [HRSA],” an agency of the Department of Health and Human Services (HHS).

Thus the majority of Congress and our president delegated to HRSA—an unelected administrative bureau—the authority to determine “with respect to women” what “additional preventive care and screenings” must be covered by health plans according to the ACA mandate. On August 1, 2011, HRSA adopted and released guidelines for group health plans and health insurance issuers for coverage of “women’s preventive health services” (italics added). Note well the change from “preventive care and screenings,” designated by law, to “preventive services,” as defined by HRSA. In accordance with the HRSA guidelines, ACA-required preventive health services for “women with reproductive capacity” include contraception and sterilization.

Simultaneous with the release of the HRSA guidelines, the US Departments of Health and Human Services, Labor, and Treasury—which are jointly responsible for administrating and enforcing the ACA—announced an exemption from the requirement to cover contraceptive services for the group health plans of nonprofit “religious employers,” such as “churches, their integrated auxiliaries, and conventions or associations of churches,” as well as for “the exclusively religious activities of any religious order” whose primary “purpose is inculcation of religious values” and who primarily employs and serves persons “sharing its religious tenets.” This excludes religious organizations engaged in other work, such as serving the poor, medical care, and education.

The HRSA guidelines were to go into effect on August 1, 2012.  When final regulations were issued on February 10, 2012, a “temporary safe harbor from enforcement of the contraceptive coverage requirement” was allowed for the group health plans of “certain nonprofit organizations with religious objections to contraceptive coverage.” Having published the proposed rules on February 15, 2012, the departments invited public comment.

The Little Sisters object

On March 1, 2012, the Little Sisters of the Poor, an international religious order of consecrated women whose mission is to serve the elderly poor, issued a statement saying that in good conscience they cannot “directly provide or collaborate with the provisions of services that conflict with Catholic teaching” when providing health insurance benefits for employees of their homes for the aged. The Little Sisters pointed to Church teaching on direct sterilization, contraception, and induced abortion, which they believe are never morally justifiable regardless of the circumstances.

Nearly a year later, on February 6, 2013, HHS published an advance notice proposing rules that might achieve their goal of “broad access” to contraceptive services without cost-sharing for employees of nonprofit organizations with religious objections to providing coverage for these services. Under the proposed rules, the health insurance provider would be required to “assume sole responsibility, independent of the eligible organization and its plan, for providing contraceptive coverage to participants and beneficiaries without cost sharing.”  For eligible organizations with religious objections to contraceptive services, third-party administrators of group health plans would be required to pay for this coverage, or arrange for health insurance issuers to provide contraceptive coverage to participants and beneficiaries without cost-sharing.   

In April 2013, the Little Sisters submitted formal comments to HHS pointing out that Christian Brothers Services—the third-party administrator of their sponsored health care plan—shares the sisters’ commitment to Catholic teaching and their objection to covering contraception and sterilization. The Little Sisters also pointed out that the possibility of financial penalties levied for noncompliance with the proposed arrangements could threaten the operation of their homes for the aged.

HHS responds with an “accommodation”  

After receiving more than 400,000 comments, on July 2, 2013 HHS promulgated the final rules and regulations for ACA-mandated “women’s preventive health services” coverage, which included “all Food and Drug Administration (FDA)-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity…without cost sharing.” It also defined the requirements of an “accommodation” by which certain eligible organizations with religious objections to contraceptive coverage can be exempted from providing contraceptive services in their health care plans. For an eligible organization to avoid contracting, arranging, paying, or referring for contraceptive coverage, it must submit a form to HHS self-certifying that it opposes providing coverage for some or all of the required contraceptive services, that it is a nonprofit entity, and that it is a religious organization. A copy of the form must be provided to the health plan issuer or third-party administrator prior to the beginning of the first plan year. 

HHS later augmented the accommodation with an option to notify HHS instead of sending the self-certification form to its insurer or third-party administrator. Rules and regulations require health insurance issuers to exclude contraceptive coverage from an exempted organization’s group health plan, to separate any enrollment materials regarding contraceptive coverage, to notify participants and beneficiaries that the issuer provides separate payment for these services with no additional cost, and to segregate all premium revenue collected from the eligible organization while accounting this segregation of funds. 

The failure of the HHS “accommodation”

Even though ACA regulations and HHS’ “accommodation” may be intended by their authors to shield objecting religious organizations from directly providing coverage for sterilization and contraceptive services, by complying with the requirements, a religious organization would materially cooperate with the insurance issuer’s provision of these services. By filing the self-certifying form (or otherwise notifying the government of a religious objection), a religious organization initiates a process by which contraception coverage is provided to employees, and becomes a necessary proximate cause for the provision of that coverage.

The Little Sisters’ case is even more complicated, because health care coverage for their employees is provided through the Christian Brothers Employee Trust, a self-funded plan that provides health and welfare benefits, consistent with Catholic doctrine, to the employees of Catholic employers nationwide.

Facing $100-per-day fines for each individual not covered for contraceptive services, on September 24, 2013, the Little Sisters—joined by Christian Brothers Services, third-party administrator of the Christian Brothers Employee Trust—filed a class-action suit against Kathleen Sebelius, secretary of HHS, and the secretaries of the Departments of Labor and Treasury for relief in federal court.  After initial denial by the US 10th Circuit Court of Appeals in Colorado, US Supreme Court Associate Justice Sonia Sotomayor granted temporary protection on December 31, 2013, the day before mandated fines were scheduled to take effect. On January 24, 2014, the full US Supreme Court granted relief to the plaintiffs while the case proceeded in the lower court.

Burwell v. Hobby Lobby

Later that year, in its in Burwell v. Hobby Lobby Stores ruling, the US Supreme Court held that HHS regulations violate the plaintiffs’ “exercise of religion” according to the Religious Freedom Restoration Act (RFRA) of 1993. The RFRA prohibits government from imposing “substantial burden” on religious exercise unless so doing is the least restrictive means of furthering a compelling government interest. In this case, owners of Hobby Lobby, a closely-held, for-profit corporation, expressed sincere Christian beliefs that “life begins with conception” and that it would violate their religion to facilitate access to specific contraceptive methods that may be abortive. The Supreme Court’s majority opinion held that Congress designed the RFRA to provide merchants with very broad protection for religious liberty, that extending the free-exercise rights to closely-held corporations within the RFRA definition of “persons” is meant to protect the religious liberty of the people who own the corporations, and that the government had “failed to show that the HHS contraceptive mandate is the least restrictive means of satisfying that interest.”

The Little Sisters’ case proceeded; on July 14, 2015, a three-judge panel of the US 10th Circuit Court of Appeals ruled against the Little Sisters and Christian Brothers, who had been joined in their suit by four Oklahoma Christian colleges and by Reaching Souls International, an overseas Christian missionary organization. The majority decision rested on their interpretation that the “petitioners had failed to establish” that the government’s accommodation mandating third-party payment for contraception services actually imposes “any burdens” on the petitioners themselves. Although a majority of the full 10th Circuit Court’s judges voted against rehearing the case en banc, five of the judges dissented: “When a law demands that a person do something the person considers sinful and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion.” 

The Little Sisters and the Supreme Court

Attorneys for the Little Sisters promptly petitioned the US Supreme Court for writs of certiorari (July 23, 2015), seeking judicial review at the highest level. The Little Sisters were soon joined in their petition by more than a dozen Jewish, Christian, secular, and professional organizations, and the attorneys general of 20 states.

The US Department of Justice responded (September 30, 2015), acknowledging that the Supreme Court should resolve the question but arguing that the Court should first consider and resolve Roman Catholic Archbishop of Washington v. Burwell, appealed from the US Court of Appeals for the District of Columbia. The government contended that the Little Sisters’ case “would be an especially unsuitable vehicle” to resolve these issues “because of the unusual and uncertain circumstances” raised in 10th Circuit Court Judge Baldock’s reasoning: that although the Little Sisters’ plan is self-insured, “their employees would not receive contraceptive coverage even if they opted out,” because of the Christian Brothers Services’ objection to covering contraception. The Respondent’s Brief acknowledges a footnote, not included in the petitioner’s preliminary injunction record, that in addition to Christian Brothers Services, the Little Sisters’ self-insured plan also relies on another party, Express Scripts, to administer prescription drug claims. If Express Scripts would provide contraceptive coverage under the accommodation, 10th Circuit Court Judge Baldock’s conclusion would not be pertinent; however, the Little Sisters’ conscientious objection against facilitating contraceptive coverage would remain cogent.

The Little Sisters’ attorneys replied (October 13, 2015) that the government’s response directing attention to the Roman Catholic Archbishop of Washington v. Burwell case was an attempt to “hand-pick its preferred case and to constrain the scope” of the Supreme Court’s review. After “trying to pick and choose which religious groups to exempt from the contraceptive mandate, HHS should not now be allowed to pick and choose its opponent or which questions it must confront in defending its actions.” The Little Sisters’ attorneys countered the government’s insistence that their case is “especially unsuitable” for Supreme Court review because of the “the unusual and uncertain circumstances” raised by Christian Brothers’ conscientious objection. The reply reiterated the Sisters’ complaint that HHS regulations would compel them to assist in the government’s effort to obligate or incentivize third parties to provide contraceptive coverage for their employees, maintaining that “those circumstances are common to more than 400 non-exempt religious employers.” Moreover, the third-party administrator for the health care plan of Reaching Souls International, a co-petitioner with the Little Sisters, confirmed that it will provide contraceptive coverage to employees if eligible organizations were to comply with self-certification.  The Little Sisters’ petition, therefore, combines a case in which the ultimate provision of coverage for contraception is uncertain and one in which it is certain because the third-party administrator is willing to provide the coverage, making this a “particularly good vehicle” to resolve the question.  What matters, the Little Sisters’ attorneys maintain, is “which vehicle is best for this Court, not for HHS.” Finally, the Little Sisters’ reply challenges HHS on constitutional grounds, complaining that the government’s rules and regulations violate the free exercise protections of the First Amendment by exempting certain religious organizations—those whose primary purpose “is inculcation of religious values”—but not exempting those who engage in other forms of service, such as the Little Sisters.

The Supreme Court of the United States on November 6, 2015, granted certiorari, agreeing to consolidate, hear, and consider the cases of Little Sisters Home for the Aged et al. v. Burwell; Priests for Life et al. v. Department of Health & Human Services; and Roman Catholic Archbishop of Washington et al. v. Burwell, along with David A. Zubik et al. v. Burwell. It is the expressed intent of these petitioners to offer health plan coverage to their employees and students in manners consistent with their organizations’ religious beliefs.

The heart of the matter

In summary, questions at issue are: 1) whether HHS regulatory methods for nonprofit religious employers to comply with the contraceptive mandate eliminates the substantial burden on the petitioners’ religious exercise or violates the Religious Freedom Restoration Act (RFRA) of 1993; 2) whether HHS satisfies the RFRA test for overriding sincerely held religious objections even if overriding the religious objections will not fulfill the HHS intent to provide contraceptives at no cost to religious objectors’ employees and students; 3) whether the ACA mandate to provide contraceptive services violates the religious freedom of non-exempt nonprofit religious organizations; and 4) whether  the government can force objecting nonprofit religious organizations in violation of their religious beliefs to facilitate the provision of sterilization, abortifacients, and contraception in employer-sponsored health care plans for their employees and students.

This is a complex history, but no more so than many questions that reach our US Supreme Court. The foregoing attempt to chronologically present as succinctly as possible the major issues raised by the Little Sisters of the Poor and those who have joined their case poses other matters, both practical and ethical, that deserve thoughtful public attention.

Dignum et justum est

The plaintiffs’ legal challenge against ACA mandates soon should be settled by decision of the United States’ highest court. Notwithstanding the anticipated legal decisions regarding exemption from ACA mandated insurance coverage for sterilization and contraceptive services and the standing of rules for accommodation to exempt eligible organizations with religious objections to contraception, it remains practically and ethically appropriate to consider whether the Little Sisters and co-plaintiffs are simply “stirring a tempest in a teapot,” or if their protestations are right and just.

Let us first return to the congressional amendment designating the inclusion of “preventive care and screenings” for women in the ACA, as signed into law by President Obama on March 28, 2010. Ordinarily, the United States Public Health Service National Institutes of Health defines “preventive health care” as screening for disease, vaccinations, genetic testing, attention to early symptoms and signs of disease, and counselling to encourage exercise, healthy diet and weight, safe sexual relationships, and use of safety restraints in automobiles, and to discourage tobacco and illicit drug use and immoderate use of alcohol. There is nothing in this definition about contraception, abortion, or sterilization. So where and how do contraceptive methods, potential abortifacients, and sterilization slip into ACA-mandated “preventive health services” for “women who may become pregnant”?

According to the Federal Register, HRSA, the administrative bureau of HHS tasked with providing guidelines for women’s preventive health services, adopted recommendations for women’s preventive services from the Institute of Medicine (IOM) as the rationale upon which ACA-mandated contraceptive methods rest. The IOM is a division of the private, nonprofit National Academies of Sciences, Engineering, and Medicine, which—operating under an 1863 congressional charter—intends to provide independent scientific advice to inform public policy decisions. In their July 19, 2011 report Clinical Preventive Services for Women: Closing the Gaps, the IOM recommended, in addition to those preventive services recommended for men, seven more evidence-based preventive services for women, including screening for gestational diabetes, counselling and screening methods for sexually transmitted diseases, comprehensive lactation counselling and support, screening and counselling regarding interpersonal and domestic violence, and at least one well-women visit annually to obtain these services. In addition to these preventive services, the IOM report also recommends for women the “full range” of “contraceptive methods, sterilization procedures, and patient education and counseling.” Committee members who contributed to the IOM report were volunteer professionals from secular and Jewish universities and academic institutions, who had special interests in matters relating to public health and policy. None were from specifically Catholic universities or institutions, or from entities identifiable as sharing their ethics concerning natural law and human reproduction. 

Taking liberties with the designation of “additional preventive care and screenings” for women required by the ACA, HRSA not only based its guidelines for women’s preventive health services on the IOM report’s recommended “evidence-based preventive services,” but it also included IOM recommendations regarding contraceptive services and sterilization.

Now, it must be submitted that contraception does not prevent disease; contraception is intended to prevent pregnancy. And pregnancy is not a disease. To be sure, pregnancy may be occasionally complicated by disease. The non-pregnant times of women’s reproductive years, as well, may be complicated by disease. Whatever a woman’s status may be, it is clearly the charge of preventive medicine to vaccinate, screen, and counsel her in order to protect, promote, and maintain her health and well-being and that of her offspring, and to prevent disease and disability. But pregnancy is not a disease. Pregnancy is the natural human function for propagation of our species.

Indeed, in General Electric v. Gilbert (1976) the Supreme Court of the United States, citing findings from evidence given in the US District Court, Richmond Virginia, rejected the view that pregnancy is even similar to disease or disability, holding to the district court’s conclusion: “The great mass of expert testimony presented here on the subject merely confirms what appears obvious to any layman: pregnancy is not a disease, as that term is commonly understood.” Pregnancy is not a disease to be prevented. Biologically and in law this is incontrovertible. 

Some pharmaceutical formulations marketed and generally used for contraception may properly and with good medical judgment be prescribed and used for the prevention and treatment of disease. When this is the direct intent and the therapeutic and/or prophylactic benefits of such medications outweigh possible unintended but foreseeable contraceptive effects with little or no abortive risk, according with the ethical principles of double effect and proportionate reason and in accord with magisterial and traditional Catholic teachings from natural law, it can be argued that use of these formulations might be justified in some cases as a matter of preventive medicine and public policy. This is not the Little Sisters and co-plaintiffs’ contention in their case against HHS. Their complaint is that the government’s regulatory accommodation does not exempt them from the statutory obligation to provide coverage for contraceptive services, but rather, while threatening disabling fines, the regulation would require them directly to facilitate coverage of contraceptive services.

Given the questionable inclusion by HRSA of required coverage for sterilization and contraceptives; the exemption of churches, affiliates, and (under the order of law) closely-held for-profit companies with religious objections to providing contraceptive services; and the plaintiffs’ uncontested ethical and religious objections against providing or materially cooperating in this coverage, the adamant insistence by HHS that the Little Sisters and their co-plaintiffs must take part in the government’s plan to deliver contraceptive services is inexplicable.