On Wednesday, Dan Proft & Amy Jacobson were joined by George Mason University Law Professor Helen Alvare to distill the case of the Little Sisters of the Poor vs. Obamacare's contraceptive mandate (Little Sisters of the Poor v. Burwell) in advance of oral arguments before SCOTUS that afternoon.
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Dan Proft: Dan and Amy. So if we needed a reminder about how important the Supreme Court is, and thus the nomination and nominee to replace Justice Scalia and who should offer a nominee, what should the Senate do; would respect to any nominee, like Mayor Carlin, that President Obama advances, what will happen depending on the outcome of the November election? All of these questions turn out to have real impact on our life because of the power of the Court in areas like for example religious freedom. Today all arguments will be heard in the Little Sisters of the Poor – v. Burwell case; this is the case challenging The Department of Health and Human Services contraceptive mandate under Obama Care. Could there be a starker dichotomy than Little Sisters of the Poor vs. The Federal Government vis-à-vis Obama Care. Boy, oh boy. Let’s get a handle on what’s likely to happen in this case with a 4-4 High Court now, and joining us is our friend George Mason Law Professor Helen Alvare. Professor Alvare, thanks so much for joining us, appreciate it. Helen Alvare: Thanks for having me. Dan Proft: So, the Little Sisters of the Poor lost at the appellate level; why did they lose and what chance did they have for reversal by the High Court? Helen Alvare: Right, so at the appellate level, the Government claims that unless the Little Sisters have to swallow or implant contraception, then the Government can tell the Little Sisters that they are mistaken, that there is a religious burden to them to have to attach contraception and abortion to their healthcare policies, because the Government is going to force them to do so. So the government is basically claiming there’s no burden because we can tell you when you are and are not religiously burdened, and the Lower Court bought that. They should, by ALCON law, constitutional law, on this are, they should win, because here’s the deal: the Supreme Court has already held, years ago, a guy who was working in a factory making part of a weapon that he didn’t have to shoot it in order to have his conscience violated. Any facilitation, in order to his own religion, making the weapon even, was enough to be burdened. If the Little Sisters can – and I think they can, under Supreme Court Law, show a burden, we have to turn over to you all the information about our healthcare plan, we have to help you contact our health insurance companies so that you can attach contraception and early abortion to this. That has got to be a burden under that precedent. I mean, it’s like the Government’s saying “I know you don’t want soda in your schools, but don’t worry, we’re going to pay for the soda machine so it’s cool that you’re giving them to your kids”. It doesn’t make any sense. Amy Jacobson: Well, where’s their religious freedom? I mean, it just seems that it was squashed by even this and Obama Care could have put a stipulation in there to exempt certain groups such as Little Sisters of the Poor, maybe Catholic Charities, maybe University of Notre Dame? Helen Alvare: Right, what’s interesting is you’ve got Catholic University, you’ve got Catholic Charities, you’ve got Little Sisters, you’ve got Protestant colleges who are leaders in the underground railroad. None of them are exempted. All of them are before the Court today. The Government could have exempted them; in fact, what’s really amazing about this is that the requirement to provide contraception is not even in Healthcare Bill. It was designed by Health and Human Services under then Kathleen Sebelius. Obama could get rid of it with a flick of his wrist, but instead, I think they have spent probably two or three times what it would cost to contracept every woman in America to take 300 plaintiffs up and down the Supreme Court. Dan Proft: Also, this note, the Becket Fund for Religious Liberty estimates that the Government has effectively exempted the health plans of 1/3 Americans from the same coercive rule; big corporations like Exxon, Pepsi, are exempt from the mandate, but Little Sisters of the Poor are not. How to reconcile that difference? Helen Alvare: Right, so Becket has detailed on his website, becketfund.org, not only in New York City, Exxon, Chevron, Pepsi Bottling, The US Military, and the tens of millions Americans with grandfather plans that are working in small businesses, none of them are required to do this. Here’s where that shifts to a legal argument; after the Little Sisters prove a burden, we have to cooperate to attack this stuff to our healthcare plan, and if we don’t, the Little Sisters, who take care of 13,000 elderly poor will have to pay the FEDs 70 million a year. So after they’ve proved their burden, the Government would have to come back and say “We can still win if we demonstrate we have a compelling State interest”; well, there’s a lot of Supreme Court precedent on the subject of this that says “If you leave lots of people uncovered by the law, then that demonstrates on its face you have no compelling state interest”. So this should be a slam dunk for the Little Sisters and the other plaintiffs, because 1/3 Americans is not pushed around to do this. Dan Proft: And Burwell v. Hobby Lobby, and the Hobby Lobby case, the Court held that for-profit employers, such as the closely held family of craft store Hobby Lobby; they could not be forced to violate their religious beliefs by paying for life ending drugs and devices as part of their plan. Now distinguish Hobby Lobby from the Little Sisters of the Poor case. Helen Alvare: Right, here’s the deal. Hobby Lobby is for-profit corporation had to cover contraception and early abortion drugs. Hobby Lobby was Prtestant Evangelical and said “We don’t object to the contraception”, but the FDA – you know, Food and Drug Administration – and Health and Human Services admit that four of these drugs can destroy an embryo. It was not contested in the case we don’t want to cover that. Hobby Lobby had no provision at all, where they could tell the FEDs “We’re not going to put it in our policies, but we’ll cooperate with you to stick it in”. Hobby Lobby had to do it or else. They didn’t have even – they didn’t have an exemption, like a plain old church, and they didn’t have what the Government’s calling an accommodation, which is what the Little Sisters have. We attach it to your plan; they had none of the above. So in that case, the Court said, number 1, for-profit corporations have always been able to have religious freedom; after all, they’re collections of people. Number 2, you’re burdened because you have to provide decent healthcare or pay. I think it was like 200 million dollars a year fine. Just step back and think about how insanely interested the Government is in drugs and devices that are like 9-20 bucks a months. It’s a little odd and obsessive. Amy Jacobson: Yeah, they’re pushing their agenda, it’s so strange. But you sound pretty confident about what’s going to be happening today, but what do you know about Justice Scalia not being there in your corner? Helen Alvare: Yeah, excellent point. I’m confident on the law, because the constitutional law is clear. I am not confident in the Justices, for this reason. Justice Canovine, and we’ve seen this on other opinions; the particularly on them, the same-sex marriage opinion. Whatever side a person is on same-sex marriage, they had to admit that Justice Kennedy’s opinion was super sloppy and constitutionally embarrassing. I mean lots of supporters of same-sex marriage have acknowledged that. Justice Kennedy sees kind of politically correct issues and he gets very, very worried that he doesn’t want to be on the wrong side of certain words. He doesn’t want to be on the wrong side of what he things is what feminism on the Obama administration has often embraced as the centerpiece of women’s freedom, contraception, sexual expression, but no kids. We really worried that Kennedy, instead of applying the law, will apply his own worries. Dan Proft: Yeah. Helen Alvare: And if he does that, then we lost 5 to 3, and he is a precedent-setting loss. Dan Proft: He is, he’s really worried about being on the side of the words religious freedom, apparently. Let me go to that point, though, the presidential value of this case. If Little Sisters of the Poor lose, what is the presidential import and impact on religious freedom? Helen Alvare: Right, so today there are 7 consolidated cases at the court representing quest to 100 blankets. In fact, it’s going to start to be argued in 13 minutes. I’m teaching hundreds of my female friends down at the court, educating for religious freedom, a couple of miles away from me right now. So we think that it’s quite possible a couple of things can happen. We could get 4 to 4. At that point, the lower court opinion stands. Six of these blankets lost, one won, but it is not a precedent setting loss; it is merely a let the lower court stand, they could come back. What happens in between, we hope would be that the Obama administration, he flicks his wrist and says I’m not going to put the Little Sisters of the Poor out of business with these fines. We could lose 5 to 3 if Justice Kennedy decides that he’s a nervous person on the question of contraception and abortion, even though we have the Villages Freedom Law on our side. Then it’s precedent setting. The court could also decide to hold it over. You may or may not know, they held over the abortion case in 1973 for re-argument, because it was too important. That could happen too, so we are going to wait for the next couple of months, or it could be sooner. The court could decide to just issue in the next couple of weeks a statement that they’re going to hold the case however for re-argument with a nine-person court. Dan Proft: Alright, she is Professor Helen Alvare, Professor of Law at George Mason University School of Law. Professor, thanks so much for joining us, appreciate your time. Helen Alvare: Thank you for having me, bye bye. Dan Proft: Let’s go to Lisa, on the North Side, you’re on Chicago’s Morning Answer. Lisa: Hi, good morning, Dan and Ami. Thanks for taking my call. Dan Proft: Sure. Lisa: What you said initially about look at the opponents here, Little Sisters of the Poor versus the Government, I have worked for Little Sisters of the Poor at their Nursing Home and with the elder care that they provide, and it is worth looking at. I’m not a Catholic, I’m not a Christian, and I have never in my life have seen the unbelievable dedication and commitment and piety of people ever; it is so incredible and it would be so worthwhile for them to show who they are and what they do, and to deny these people that are so utterly compassionate to the most, people who are completely shun to the side of our community and of the world, and in our country they should be given whatever they want. They should be given a lot of help and they should be allowed to be given their decisions and have their beliefs respected. Dan Proft: Thanks for the call, Lisa.