Moral Sin, or Frivolous Appeal?

Judge Richard A. Posner of the Seventh Circuit Court of Appeals was not amused during oral arguments last month. The case, Notre Dame v. Sebelius, concerns the requirement in the Affordable Care Act for “basic essential health benefits” that cover contraception without any co-pay, a regulation made by the Department of Health and Human Services after consultation with the Institute of Medicine. Religious nonprofits are exempt from the law’s requirement, as are affiliated groups such as Catholic hospitals and universities like Notre Dame, though their insurance companies must pay for employees’ contraceptive coverage. For-profit companies whose owners have religious objections must still provide the coverage.

Despite not being required to pay, or even to have any involvement with providing contraceptive coverage, Notre Dame has argued that its religious liberty is unduly burdened by merely participating in a system that provides such coverage. In seeking to understand this logic, Judge Posner asked the university counsel what the school found objectionable in communicating its religious views to the government, gaining its exemption, and continuing to not pay for contraception.

Posner became somewhat hostile when he did not receive a straightforward answer. Some of Judge Posner’s behavior may have strayed outside the bounds of circumspect judicial temperament, but his exasperation with Notre Dame’s unconvincing argument was understandable.

The coup de grâce undoubtedly came when he asked attorney Matthew Kairis, litigating on behalf of Notre Dame,  if contraceptive use was “a mortal or venial sin.”

“I don't know,” the lawyer responded.

“Well, you should.”

Perhaps that final exchange was gratuitous, but it gets to the heart of some of the real health issues underlying the constitutional ones. According to the Guttmacher Institute, 89 percent of Catholic women who are at risk of an unwanted pregnancy use contraception, including 68 percent who use a “highly effective” method like the pill or IUDs. Most strikingly, the Guttmacher study found that “only 2 percent of Catholic women rely on natural family planning,” even when church attendance is taken into account.  In other words, the Catholic Church’s doctrinal position on contraception has lost touch with the health needs of its members, to say nothing of those of Americans more broadly.

Issues of moral authority and health realities aside, Notre Dame’s legal case is, as Judge Posner’s skepticism likely indicated, troubled. As Emma Green noted in the Atlantic, previous cases have held that “religious groups do not have veto power” over government regulatory regimes, only the right to avoid direct participation—a right that the university is manifestly able to exercise by completing the opt-out paperwork.

If Notre Dame’s case represents a strained attempt to stretch the doctrine of religious freedom, the one involving an organization called Little Sisters of the Poor is the phenomenon’s reductio ad absurdum. Like Notre Dame, Little Sisters of the Poor—a nonprofit run by nuns—is exempt from the paying for contraceptive coverage. But their insurer is also a religious nonprofit, meaning that their employees will be denied outside coverage as well. And yet the organization is suing, claiming that even filling out the necessary paperwork is a violation of their religious liberty.

As Linda Greenhouse ’68, a former Crimson editor, has pointed out, the Little Sisters of Poor case is frightening for two reasons. First, despite the bizarre logic underpinning it, the Supreme Court chose to give the sisters a stay until the case could be heard by a lower court, raising the specter that some justices may sympathize with the group. Second, the case is the perfect illustration of the “give ’em an inch, they’ll take a mile” doctrine—as Greenhouse put it, “An ever more generous set of accommodations … has only led to a demand for more.” If a religiously-inspired organization undertaking secular work is exempt from submitting a government form, what regulatory writ does the government actually have?

That question is central to perhaps the most crucial of the contraception mandate cases, the one involving the private store Hobby Lobby, which is seeking an exemption because its owners are religiously opposed to contraception. Here, the owners are indeed inconvenienced by the regulation, but, as owners of a for-profit chain subject to Congress’s regulation of interstate commerce, they should have little ability to object. As legal scholar Garrett Epps ’72, observes, “The government has a powerful interest in making sure that its comprehensive insurance scheme provides uniform opportunities to all employees in commerce.”Astoundingly, however, the Tenth Circuit sided with the owners, and the case is before the Supreme Court.

Which brings us back to Judge Posner. Though drawing inferences from oral arguments is always a dangerous proposition, one can only hope that his tone was indicative not of his mood, but of his impression of the plaintiff’s unworkable reasoning. If the rest of the Federal bench can take its cue from this skepticism, it will be a victory for sound legal interpretation and reproductive health.

Nelson L. Barrette ’17, is a Crimson editorial writer in Thayer Hall.