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Little Sisters Wins an Injunction against Obamacare Contraceptive Mandate


Obamacare’s contraceptive mandate will be argued this year in a series of cases. The most important case will likely be the case involving Little Sisters of the Poor. This organization does not wish to provide its members (Catholic nuns) with health coverage for contraceptives. Although the government has issued an exception for religious organizations, Little Sisters claim that the exception is not adequate.

LittleSistersOfThePoorAdvocates of religious liberty couldn’t have picked a better test case. Little Sisters is a non-profit nursing home in Denver run by nuns. They provide health coverage to their employees through a self-insured church plan. Obamacare offers Little Sisters an exit from the contraceptive mandate if they sign EPSA 700, a form which would release Little Sisters from paying for their female employees’ birth control.

So what’s the problem? The White House sees the EPSA 700 form as the religious accommodation the nuns are asking for. However, Little Sisters asks that the disconnect between the non-profit and their employees birth control be even wider. EPSA 700 would relieve Little Sisters and their insurance, Christian Brothers Employee Benefits Trust, from having to pay for birth control, but the form would authorize a third party to offer such benefits to their employees.

In response, Supreme Court Justice Sotomayor has ordered an injunction on the mandate until the case is resolved. The injunction only applies to the Little Sisters chapter in Denver, but it is still a political victory for the nuns.

Liberty Is for the Powerful

Each side sees this case in two different ways. The White House seeks to provide contraceptives for any woman who wants birth control. From a philosophical standpoint, birth control helps women achieve equality with men. In a sexual relationship, men can walk away from unprotected sex without fear of consequences. Birth control allows women to do the same.

Little Sisters claim they represent the liberty side of this debate. Religious groups should be free to express their religious views without having to pay fines. Little Sisters allege that the President can find ways to offer their employees birth control without requiring non-profit organizations to sign a release form.

That is true, but this case makes more sense if we divide it into three tiers. The bottom rung are the employees themselves, who may want birth control, but cannot obtain it without working for an employer. The employer is the next tier in this case and the employer has power over the employees because the employees are dependent upon the employer for money. The top tier is the government, which can force the employer to treat employees in a certain manner.

The employer is concerned that the government can force the employer to act in a manner that the employer doesn’t agree with. That would restrict the employer’s liberty. What about the employees though? The liberty of Little Sister’s employees would be restricted by Little Sister’s religious liberty. If we assume that liberty ends if it restricts the liberty of another, then Little Sisters should not be able to deprive their employees of birth control.

Little Sisters may argue that their employees chose to work for them, with full knowledge of their religious nature. If their employees really want birth control, they can work for someone less opposed to contraceptives. The problem with this line of reasoning is that employees don’t always have a choice in who they work for. In an economic recession, an employee’s present job may be their only choice.

Government in Health Care

We should take a further step back. Why is the government deciding the form of compensation between employer and employee at all? I think it is absolutely silly that an employer can deprive an employee of birth control simply because the employer has a religious objection.

However, that doesn’t mean that the government should be the vehicle for change. The government should not be able to mandate that employers of a certain size or type have to provide health insurance to their employees and then mandate that the insurance include specific benefits. Before Obamacare, health insurance coverage was an additional form of compensation offered by an employer to attract the best employees. Before Obamacare, employers could offer what type of insurance their employees could work for. Obamacare turns that notion on its head.


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