By Deacon Mike Manno
(The
Wanderer) - Several orders of nuns, both Catholic and
Anglican, as well as a couple of Catholic dioceses, along with several other
Christian churches and faith-based social justice ministries, are asking the
Supreme Court to protect them from an insidious state rule in New York that
will compel them to provide abortion coverage in their employees’ health-care
packages.
Shades of the Little Sisters of the Poor, who successfully
challenged Obama-era regulations that forced them to provide contraceptive
coverage in their health insurance. Three times the court ruled in favor of the
Little Sisters holding that the government could not force the Little Sisters
to do so.
Ironically, in 2017 after the Little Sisters scored two of
their Supreme Court victories, the superintendent of the New York department of
financial services, Linda A. Lacewell, promulgated a regulation mandating that
employer health-care plans cover abortions. The regulations, as originally
proposed, contained a religious exemption. But after public pressure, Lacewell
backtracked on the religious protection, limiting the exception only to
religious employers whose work is, basically, with only members of their sect
and who employ persons who share the religious beliefs of the employer.
Thus numerous religious organizations such as the Carmelite
Sisters, who run a nursing home for the elderly and dying, and the First Bible
Baptist Church, which serves the community through youth and deaf ministries
(just to name two of the plaintiffs), who do not limit their ministry to just
members of their own body, nor do they restrict hiring to members of their
faith, do not qualify for the rule’s religious exemption.
According to the petition filed with the Supreme Court:
“The Superintendent abandoned the broader exemption after
‘request[s]’ by ‘hundreds of commenters.’ In the Superintendent’s view,
‘[n]either State nor Federal law require[d]’ any exemption. And the exemption
she chose was analogous to existing state law.’ The Superintendent stated that
she rejected the initially proposed religious exemption because ‘the interests
of ensuring access to reproductive care, fostering equality between the sexes,
providing women with better health care, and the disproportionate impact of a
lack of access to reproductive health services on women in low income families
weighs far more heavily than the interest of business corporations to assert
religious beliefs’.”
In other words, the abortion lobby got to her. As a result
she narrowed the exemption to protect only religious entities whose purpose is
to inculcate religious values who primarily serve and hire co-religionists. The
regulation imposes fines for employers who fail to provide abortion coverage:
$2,700 per employee. In the case of the Carmelite Sisters, with over 200 employees
of their nursing homes, those fines would reach over half million dollars a
year.
So after losing their case in the New York courts, the
Becket Fund for Religious Liberty, and several private law firms, are appealing
the matter to the Supreme Court on behalf of the religious plaintiffs.
“Our faith tells us that every life is precious from the
moment of conception to the final breath. That’s why we spend our lives praying
and serving to lift others’ burdens,” said Mother Miriam of the Sisterhood
of Saint Mary, the oldest religious order founded in America in the Anglican
tradition.
“New York has told us that if we want to hold our beliefs
about the sanctity of life, we have to stop serving non-Anglicans. We cannot
compromise on our religious beliefs, or in our service to people of all faiths
or no faith at all. That’s why we need relief from the Supreme Court.”
In their petition asking the court to hear the case (Writ
of Certiorari), the religious groups, which include the Catholic Dioceses of
Albany and Ogdensburg, and Catholic Charities of Brooklyn, write:
“Needless to say, this regulation imposes enormous burdens
on the countless religious entities opposed to abortion as a matter of
longstanding and deep-seated religious conviction.”
The petition claims that the rulings against them in the
lower courts stem from an improper finding in an earlier case which held that
applying a neutral law of “general applicability” to a case does not require
the reviewing court to subject the matter to “strict scrutiny,” which imposes
upon the government the burden to show a compelling governmental interest using
the least restrictive means possible, lest the law be found in violation of the
challenging party’s First Amendment protections.
After a short history of how other courts and circuits have
interpreted prior cases, the petition makes the claim that since there was a
modified exception for certain religious institutions, the law is not,
therefore, one of general applicability. Quoting recent case law, plaintiffs
argue “that a regulation is not generally applicable if it has ‘any’
exception.”
Further, “That the abortion mandate undermines New York’s
interest in ensuring comprehensive coverage by exempting some religious
organizations but not others should thus be more than sufficient to trigger
strict scrutiny.”
Additionally, petitioners argued, “Exempting only certain
religious organizations while imposing burdens on other necessarily triggers
strict scrutiny. No state can pass laws that prefer one religion over another.
Imposing burdens on some religious entities while exempting others flouts the
constitutional prohibition of denominational preferences.”
And they argued, “[T]hat the Abortion Mandate violates the
Free Exercise Clause because it substantially burdens and discriminates among
and against certain religious entities without justification. The Abortion
Mandate was promulgated with the explicit intention of exempting some
employers, while, at the same time, excluding other employers from the
exemption. And the exemption ‘treats similarly situated individuals and
organizations differently based solely on religious viewpoint’.”
“When New York instituted its abortion mandate, the Little
Sisters of the Poor were already two Supreme Court victories into their battle
against the contraceptive mandate. Now they’ve won for a third time, sending
the clear message that the government can’t make nuns do its dirty
work,” said Lori Windham, senior counsel at Becket.
“New York’s failure to learn from the Little Sisters’ saga
that you can’t make nuns pay for abortions is beyond reason. The court needs to
step in and teach New York that lesson.”
As I always caution in these cases, the Supreme Court has
not agreed to hear this case yet, so the only petition filed at this point is
an argument as to why the court should accept it. If it is accepted, the
argument will turn on how the court should rule, and that could take a year or
more before the case is finally submitted. So stay calm and pray the court
accepts the case and grants the relief requested.
(You can contact Mike at: DeaconMike@q.com and listen to him every Thursday at 10 a.m. CT on Faith On Trial at IowaCatholicRadio.com.)
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