- - Friday, April 22, 2016


In a rare move that surprised observers of the Supreme Court, the justices recently responded to arguments in the religious freedom case of Zubik vs. Burwell by asking the government and petitioners to cobble together a compromise. Specifically, the Court ordered both parties to submit supplemental briefs offering a less religiously restrictive alternative to the contraception mandate.

This was easy for the plaintiffs. Less restrictive means that would not violate RFRA abound. If the government’s goal is to give every woman of childbearing age in the United States free oral contraceptives, there are countless ways the government can do that without involving nuns, churches, monasteries, Christian colleges, and other religious organizations. For instance, insurance companies
could offer separate plans for women, the way they do for vision and dental coverage. This could be as simple as filling out a postcard on your first day of work.

The government had a harder time responding. The Court basically wants to know why it is necessary for the petitioners to sign a form at all? Couldn’t the government distribute “free” oral contraceptives without a signed form and without the infrastructure of the Little Sisters’ health plan? In their long and detailed brief, the government first said “no” and then said “yes”. It is on page 14 that they say that the accommodation “could be modified to operate the in
manner posited in the Court’s order.” They admit they can supply the contraceptives without the express permission of the nuns and other religious employers. With this they admit that there is a less restrictive alternative.

It was obvious to all interested observers that there have always been alternatives for the government—alternatives that didn’t burden the sweet Little Sisters and their co-petitioners with huge fines if they followed their consciences. We are, after all, a country that can put a man on the moon and a rover on Mars. The distribution of elective hormonal drugs should be a snap.

But the government insists it has to have the nuns’ help. Help with their insurance plans and help with their signatures. They have been trying now for years to get the Little Sisters to knuckle under or pay the huge fines, even though it has already exempted the plans of tens of millions of Americans (like the employees of Pepsi and Exxon) for administrative reasons. The government even exempted itself and does not require free contraceptives in the insurance plans for military families and the disabled.

The awful persistency of the government in its fight against the nuns would make anyone wonder if there is a special animus against the sisters here. A new Marist poll finds a majority of Americans think that the administration is being unfair in its treatment of the nuns and other religious employers. While the optics of the
situation—all-powerful United States government vs. charitable women who care for the indigent elderly—certainly are against the administration, the substance is against them too.

Having a myriad of options, they have chosen again and again to bully the nuns into the distribution of elective and morally problematic drugs. This goes against our country’s beautiful tradition of respect for the deeply held beliefs of every American.

Dr. Grazie Pozo Christie specializes in radiology in the Miami area and serves on the advisory board for The Catholic Association.

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