Obama Claims Power to Make Churches Fund Abortion
by Ken
Klukowski24 Mar 2016Washington, DC
The Obama administration is
claiming it has the unprecedented power to compel churches to provide
abortion-related products and services.
Referring to Obamacare’s abortion-pill mandate during
arguments in the Little Sisters of the Poor case at the U.S. Supreme
Court, Chief Justice John Roberts asked
U.S.
Solicitor General Donald Verrilli, “Could you apply the same requirements you
apply to the Little Sisters to the church entity itself?”
“I think we could, Your Honor, yes,” Verrilli answered.
Obamacare includes an administrative regulation that some
call the “abortion-pill mandate.” It says employers who offer healthcare to
their employees must cover abortion-related products and services including
contraceptives and sterilization procedures.
Those who refuse are subject to a crushing penalty of
$100 per employee, per day. For the nuns who make up the Little Sisters
of the Poor, this would mean $70 million per year in government penalties.
In its 2014 Hobby Lobby case, the Supreme Court
held that for businesses owned by people of faith who religiously object to
abortion, the abortion-pill mandate violates those people’s rights under the
Religious Freedom Restoration Act (RFRA). (If the Court had not decided the
case on RFRA grounds, the plaintiffs also argued that the mandate violates their
First Amendment religious-liberty rights.)
Knowing it faced an uphill battle, the Obama
administration exempted churches. It also issued an “accommodation” for
religious nonprofit groups, under which a group would certify its religious
objection, and provide information regarding its insurance company. Then the
government would transfer the legal obligation to pay for abortion-related
matters from the religious group to the insurer.
But evangelical and Catholic ministries, colleges, universities,
and other groups like the Little Sisters of the Poor, as well as Orthodox
Jewish, Muslim, Native American, and Mormon groups, still objected, because
filling out a form that imposes on someone else an obligation to pay for
abortions would still make those faith-based organizations complicit in
wrongful acts that violate their religious faith.
In seven consolidated cases—officially known together as Zubik
v. Burwell, but likely to be called Little Sisters of the Poor in
the history books—the justices are deciding whether this “accommodation” still
violates RFRA. A federal law or regulation violates RFRA when the government
substantially burdens a person’s religion, and that burden is not the least
restrictive means to achieve a compelling public interest.
Former Solicitor General Paul Clement, one of the two
lawyers arguing for the Little Sisters and other plaintiffs, said the nuns’
choice was that they “can adhere to their religious beliefs and pay millions of
dollars in penalties, or they can take steps that they believe to be
religiously and morally objectionable.”
The other lawyer was another renowned Supreme Court
litigator, Noel Francisco, who attacked the Obama team’s case for its “utter
lack of evidence” supporting the government’s argument as to why the abortion-pill
rule is necessary.
Roberts had some tough words for Verilli. Describing how
the government’s scheme works by taking control of private healthcare plans,
the chief justice said, “The petitioner has used the phrase ‘hijacking,’ and it
seems to me that that’s an accurate description of what the government wants to
do.”
Most of the fastballs during argument came from Justice Samuel Alito,
who in his trademark style included a few humorous barbs in his incisive
questions.
Alito pressed Verrilli on how the administration could
make this morally objectionable coverage available on Obamacare’s insurance
exchanges, asking him why that would not be a less restrictive means of
providing such coverage without violating anyone’s faith.
When Verrilli insisted that this could not be a
more-effective substitute, Alito asked, “Is it because these Exchanges are so
unworkable, even with the help of a navigator, that a woman who wants to get
free contraceptive coverage simply has to sign up for that on one of the Exchanges?”
As Verrilli argued that the government has a “compelling
interest” in providing “seamless” abortion-related coverage with a single plan,
Alito pointed out that many “people have one insurance card for medical
services and another for prescriptions, [or] for dental or vision.”
Obama’s team took a stridently liberal position on why
forcing employers to pay for abortion-related matters is a public interest of
“compelling” magnitude, with Verrilli later explaining that unfettered access
to abortion-related services “protects the fundamental rights and liberties and
dignity” of those seeking such products and services.
When Obama’s lawyer continued with this theme that
America had a compelling need to avoid the “administrative burden” of Americans
dealing with two separate insurance plans, Justice Anthony Kennedy picked up on Roberts’s position, saying with dry
humor and a smile, “That’s why it’s necessary to hijack the plans.”
The liberal justices did not seem persuaded by Clement and
Francisco. Justice Stephen Breyer said
that part of being a member of society is that sometimes a religious person
must “accept all kinds of things that are just terrible for him.”
At another point in the argument, Justice Sonia Sotomayor pointed out that various people of faith object
to many things in society, but asked rhetorically that if the courts ruled that
conscientious objectors are excused from their legal obligations, “how will we
ever have a government that functions?”
The absence of the late Justice Antonin Scalia was keenly
felt in the courtroom, and experienced Supreme Court lawyers on the
pro-religious-liberty side lamented his absence afterward in the conversations
that took place in the Court’s Great Hall, and later on the plaza at the foot
of the Court’s steps.
(It should also be noted that Clement and Francisco are
both former Scalia law clerks, and that Clement is rumored to be a possible
replacement for Scalia if
Sen. Ted Cruz (R-TX) 97% is elected
president.)
That’s because without Scalia, it appears the most likely
outcome now is a 4-4 split decision. If so, the justices have two choices.
One is to end this case anytime in the next 90 days with
a one-sentence order saying that the “judgment below is affirmed by an equally
divided Court.” If so, then the case will create no national precedent, leave
the lower court decisions (which were all against the Little Sisters and other
plaintiffs) in place, and await one of the two other cases currently in the
lower courts challenging the “accommodation” to make it to the Supreme Court,
when the Court will be closer to getting a ninth justice to break the tie.
The other is for the Court to hold this case
indefinitely, then when a new justice is confirmed (which looks increasingly
likely not to happen until 2017), schedule the case for re-argument.
Of course, if a conservative Republican wins in November,
then the entire abortion-pill mandate will likely be abolished before the Court
could rule on it, either because Obamacare will be repealed, or at minimum
because a new president could cancel the regulation by executive order.
In any event, if the Little Sisters and their allies
prevail, it’s hard to see how that victory comes from the Supreme Court anytime
soon.
John Roberts
John G. Roberts
Jr. is the chief justice for the U.S.
Supreme Court, and an honorary member of the Robert Trent Jones Golf Club (Gainesville, VA).
Note: Vernon E. Jordan
Jr. is the president emeritus at the Robert Trent Jones Golf Club (Gainesville, VA), Valerie B. Jarrett’s great uncle, an
honorary trustee at the Brookings Institution (think tank), a director at the American
Friends of Bilderberg (think tank), and a 2008 Bilderberg conference
participant (think tank).
Valerie B. Jarrett
is Vernon E. Jordan Jr’s great niece, the senior
adviser for the Barack Obama
administration, and a member of the Commercial
Club of Chicago.
Commercial Club of
Chicago, Members Directory A-Z (Past Research)
Tuesday, December 17, 2013
Cyrus F.
Freidheim Jr. is a member of the Commercial
Club of Chicago, and an honorary trustee at the Brookings Institution (think tank).
Foundation
to Promote Open Society was a funder for the Brookings Institution
(think tank), and the Committee for
Economic Development.
George Soros
was the chairman for the Foundation to Promote Open Society,
and is the founder & chairman for the Open
Society Foundations.
Open
Society Foundations was a funder for the American Constitution Society, the Planned Parenthood Federation of America, and the Catholic Relief Services.
Faith Elizabeth
Gay is a board of adviser’s member for the American Constitution Society, and was an attorney at Sidley Austin LLP.
Drew
Saunders Days III is a board of adviser’s member for the American Constitution Society, and was
a solicitor general for the Office of
the Solicitor General.
Donald B.
Verrilli Jr. is the solicitor general for the Office of the Solicitor General, and was the deputy counsel to the
president for the Barack Obama
administration.
Elena
Kagan was a solicitor general at the Office of
the Solicitor General for the Barack
Obama administration, and is a justice for the U.S. Supreme Court.
Carter G.
Phillips was an assistant to the solicitor general for the Office of the Solicitor General, and is
a partner at Sidley Austin LLP.
R. Eden Martin is
counsel at Sidley Austin LLP, and
the president of the Commercial Club of
Chicago.
Newton N. Minow
is a member of the Commercial Club of
Chicago, and a senior counsel at Sidley
Austin LLP.
Michelle Obama
was a lawyer at Sidley Austin LLP.
Barack
Obama was an intern at Sidley Austin
LLP, is the president for the Barack
Obama administration, and Obamacare
is his signature policy initiative.
Obamacare
is Barack Obama’s signature policy
initiative.
CGI Group Inc.
was the Obamacare contractor that
developed Healthcare.gov web site.
Donna S. Morea
was the EVP for the CGI Group Inc.,
and a trustee at the Committee for
Economic Development.
Carolyn S. Chin
was a trustee at the Committee for
Economic Development, and is a member of the Belizean Grove.
Julie
Daum is a trustee at the Committee
for Economic Development, and a member of the Belizean Grove.
Henrietta
Holsman Fore is a trustee at the Committee
for Economic Development, and a member of the Belizean Grove.
Davia B. Temin is
a trustee at the Committee for Economic
Development, and a member of the Belizean
Grove.
Mary Agnes
Wilderotter is a trustee at the Committee
for Economic Development, and a member of the Belizean Grove.
Sonia Sotomayor
was a member of the Belizean Grove,
is a justice for the U.S. Supreme Court,
and a member of the Phi Beta Kappa
Society.
John G. Roberts
Jr. is the chief justice for the U.S.
Supreme Court, and an honorary member of the Robert Trent Jones Golf Club (Gainesville, VA).
Belizean_Grove
is the equivalent to the male-only social group, the Bohemian Club.
George H.W. Bush
is a member of the Bohemian Club, and a member of the Phi
Beta Kappa Society.
Samuel
Anthony Alito Jr. is a member of the Phi
Beta Kappa Society, and a justice for the U.S. Supreme Court.
Stephen G. Breyer
is a member of the Phi Beta Kappa
Society, and a justice for the U.S.
Supreme Court.
Ruth Bader
Ginsburg is a member of the Phi Beta
Kappa Society, and a justice for the U.S.
Supreme Court.
Anthony M. Kennedy
is a member of the Phi Beta Kappa
Society, and a justice for the U.S.
Supreme Court.
David Hackett
Souter is a member of the Phi Beta
Kappa Society, and was a justice for the U.S. Supreme Court.
Elena
Kagan is a member of the Phi Beta
Kappa Society, a justice for the U.S.
Supreme Court, and was the solicitor general at the Office of the Solicitor General for the Barack Obama administration.
Donald B.
Verrilli Jr. is the solicitor general for the Office of the Solicitor General, and was the deputy counsel to the
president for the Barack Obama
administration.
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