After Hobby Lobby, what’s next?

In a few days, the Supreme Court will decide the Hobby Lobby case, where the question is whether the federal government can require a family-owned business to cover life-terminating drugs in violation of the family’s religious beliefs. At oral argument, a majority of the Court seemed to side with Hobby Lobby, and most pundits are predicting a Hobby Lobby victory. If so, what comes next?

The answer is simple: the Little Sisters of the Poor. Just as Hobby Lobby headlined a group of for-profit businesses challenging the contraception mandate, the Little Sisters of the Poor headline a much larger group of non-profit ministries challenging the same mandate. The non-profit cases are about a year behind the for-profit cases in court. But after Hobby Lobby—win or lose—the Supreme Court will have to decide the fate of the Little Sisters and other non-profits.

{mosads}The Little Sisters of the Poor are an international order of Catholic nuns founded by St. Jeanne Jugan. They take a vow of poverty and spend their lives caring for the elderly poor. They have thirty homes in the United States, where they care for the elderly and dying with love and compassion. Because of their commitment to the dignity of all human life, they cannot participate in a system that would provide contraception, sterilization, and abortion-inducing drugs.

But the federal government has refused to exempt the Little Sisters from the contraception mandate. Instead, it offers what it calls an “accommodation,” which requires the Little Sisters to designate a third party to provide contraception and abortion-inducing drugs to their employees in their place. In the Little Sisters’ religious tradition, this makes them complicit in the destruction of human life. But if the Little Sisters refuse to participate, they face fines of several million dollars per year.

As a last resort, the Little Sisters, represented by the Becket Fund for Religious Liberty (which also represents Hobby Lobby), filed a lawsuit challenging the contraception mandate—one of 51 suits on behalf of over 200 non-profit ministries. Although the Little Sisters make many of the same arguments as Hobby Lobby, a federal appeals court ruled against them in late December, and they filed an emergency appeal to the U.S. Supreme Court on New Year’s Eve—just hours before the multi-million dollar fines would begin. Fortunately, the Supreme Court unanimously granted them a temporary reprieve, ordering the government not to enforce the mandate against them while their lawsuit moved forward. The case is now awaiting a decision from the federal court of appeals.

Given the Supreme Court’s grant of temporary relief, and given a ruling in favor of Hobby Lobby as the pundits predict, you might think the federal government would get the message: don’t force people to provide contraception and abortion-inducing drugs in violation of their religious beliefs. Obviously, if the mandate violates the religious freedom of for-profit business owners, it must also violate the religious freedom of the non-profit Little Sisters—who receive no wages, take a vow of poverty, and spend their lives caring for the elderly poor.

A common-sense response after a victory for Hobby Lobby would be for the government to amend the mandate to exempt the Little Sisters and other non-profits.

But don’t hold your breath. The Obama administration has been fighting the Little Sisters tooth and nail for almost a year. It claims that the Little Sisters’ opposition to the contraception mandate is part of a “War on Women.” And it makes the theological claim that the “accommodation”—which requires the Little Sisters to designate a third party to provide abortion-inducing drugs on their behalf—simply doesn’t burden the Little Sisters’ religious beliefs.

But that is not how the Little Sisters understand their own faith, according to which the so-called “accommodation” makes them complicit in the destruction of human life. The owners of Hobby Lobby made the same basic objection. And when the Supreme Court rules in favor of Hobby Lobby, it will send a strong message that the government’s fight against the nuns is a losing battle.

And what about the Obama administration’s claim that the nuns are waging a “War on Women”? That rhetoric might turn out some voters in a midterm election, but it rings pitifully hollow. The Little Sisters is an order of women who have been serving the elderly poor with the same compassion and conviction for over 100 years. They are, like so many religious women, on the front lines of a Church Pope Francis refers to as a “field hospital.”  The government is now telling them that they must abandon their convictions or pay multi-million dollar fines, at a time in our nation’s history when the elderly and the poor are often invisible. There is only one aggressor on the field in this struggle, and it is the government, which is waging a war on charity.

Fortunately, it is a war that the government cannot win—particularly after a Supreme Court victory for Hobby Lobby. A victory in Hobby Lobby should convince the government to call a truce. But if it doesn’t, the nuns need not fear. They still have the law—and I daresay God—on their side.

Alvare is a professor of Law at George Mason University School of Law and Founder of Women Speak for Themselves.


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