The Hexacoto

Image credit Becket Fund for Religious Liberty

One of the news stories that came out around the turn of 2013/14 was the story of a religious group of nuns, the Little Sisters of the Poor, who aid the elderly. The story reported by many publications basically says this:

Obamacare is forcing a religious group of nuns to provide contraception to their employees! Shame on Obamacare!

Related arguments include: The Obama administration doesn’t think the Little Sisters are religious enough to qualify for church exemptions; the government shouldn’t force religious entities to do anything that goes against their moral beliefs.

Currently, the majority of news sites that tout this stance are mostly Op-Eds, as well as, of course, Fox News, and some others infamous for being less credible news sources, such as the NY Post.

However, given some of the facts of the case that were made available from the beginning of the case that really undermines the Little Sister’s standing, it’s unbelievable that writers are still deliberately ignoring those points and writing pieces with only side of the story — much bad journalism indeed. Well, I suppose sensationalising stories is nothing new, especially with some news sites whose purpose are not so much to enlighten but to build narratives.

However, some sites, such as the Huffington Post and the Denver Post, have also been guilty of reporting only one the side of the story where the Obama administration is being the overpowering encroacher. For them, it shouldn’t have been hard to do a quick search to find out what the facts are, should it?

I’ll summarise the facts and developments of the story:

• On January 1st, 2014, a mandate from the Affordable Care Act (ACA), popularly known as “Obamacare,” would require employers providing insurance to is employees to include contraception coverage, or face fines.
• Religious organisations, such as churches and synagogues, are exempt.
• The Little Sisters of the Poor is a religious-affiliated non-profit, not a religious organisation, so they are still required to provide contraception coverage.
• However, a provision in the ACA states that religious-affiliated groups, such as the Little Sisters, can opt out by filling out a conscientious objection form.
• The objection form will then pass the burden of providing contraception coverage onto a third-party insurer.
• Little Sisters says that even signing the form goes against their religious beliefs, because it makes them complicit in providing of contraception.
• However, their arguments have a flaw: their employees are using a “church plan” insurance, which pre-dates the ACA, and under the church plan, the Little Sisters doesn’t have to provide contraception coverage anyway.
• Little Sisters appeals for an injunction of the ACA mandate on them, appeal was rejected. On December 31, one day before the ACA mandate takes effect, Justice Sotomayer grants a stay on the rejection of the appeal, until a decision is reached.
• The U.S. government has asked the Supreme Courts not to extend the exemption

There is a law, the Employment Retirement Income Security Act of 1974 (ERISA), that sets the standards for benefits provided to employees, should employers choose to provide them, and those under the church plan provision of ERISA don’t have to provide contraception coverage. Since it pre-dates the ACA, it limits the federal government’s authority over the health plan that the Little Sisters has, the Obama administration argues, and under ERISA the Feds couldn’t intervene or penalize it.

“There is no statutory authority to regulate the third-party administrator of a self-insured church plan and no legal compulsion for that administrator to provide contraceptive coverage where an eligible organization with a self-insured church plan invokes the accommodation, ” the government lawyers argued in an earlier Circuit Court brief.

So the Little Sisters is essentially just against the signing of the form, where if they do sign it, nothing changes from status quo — no contraception coverage will be provided, not even by third-party insurers. Yet if the Denver group doesn’t invoke that “accommodation” by self-certifying, it is still subject to hefty fines under the Affordable Care Act, at $6,700 a day, or $4.5 million a year, which comprises a third of their budget. Are they then petitioning against potential spiritual complicity, not even actual spiritual complicity, where signing the form equates to providing for the possibility of complicity, where if I sign, were I not under a church plan, I’d possibly have to provide contraception coverage, and that is against my moral beliefs? Can people actually petition against a counterfactual situation? The Becket Fund for Religious Freedom, which is also defending a similar case for Hobby Lobby, a private company that refused to provide contraception coverage because of their religious values, has taken up the Little Sisters’ case.

There is no deadline for court action, and Sotomayor can make the decision herself or refer it to the whole court, in which case all nine justices will decide.