(Bloomberg View) — A group of Catholic nuns, the Little Sisters of the Poor, wants relief from a U.S. Department of Health and Human Services (HHS) mandate requiring it to offer contraceptive coverage to its employees. The nuns lost a court case this week — and everyone who cares about religious freedom should be troubled by the reasons why.
The Religious Freedom Restoration Act (RFRA) lets religious believers seek exemptions from laws or regulations, but it also lets courts deny those exemptions for many reasons. The courts can conclude that the religious objection is insincere, a cover for some non-religious motive for shirking legal obligations. They can conclude that the government isn't subjecting the objectors to serious harm for following their consciences. They can conclude that the violation of conscience is necessary to pursue an important public purpose.
What they cannot do is tell religious Americans that they're wrong about what they consider to be a violation of their consciences. That would make the court the arbiter of what constitutes a respectable religious belief — and keeping the government out of that business is largely the point of the law and tradition of religious freedom.
But that's exactly what a federal appeals court has just done in the Little Sisters of the Poor case. It's telling the nuns that they shouldn't regard a government order as a violation of their consciences.
The Patient Protection and Affordable Care Act (PPACA) gave HHS the authority to require insurers to cover "preventive services" for women. President Barack Obama's administration used this authority to require coverage of contraceptives. Churches were exempt from the requirement, but religious nonprofits such as the Little Sisters were not.
Eventually, the government said such groups could have an "accommodation" for their beliefs if they filed a form registering their objection and giving the government or a third party access to their insurance network, so that they could use that network to provide employees contraceptive coverage.
