Theologians' brief in HHS mandate case might lead to compromise ruling

IMAGE: CNS photo/Jim Lo Scalzo, EPA

By Carol Zimmermann

WASHINGTON (CNS) — Supreme Court cases, with their multiple friend-of-the-court
briefs, leave extensive paper trails behind them and although these briefs might
get lost in the shuffle, occasionally some stand out.

In Zubik v. Burwell, the
challenge to the Affordable Care Act’s contraception requirement, more than 30
briefs were filed by religious, political and health groups weighing in both
for and against the mandate that most religious and other employers must cover
contraceptives, sterilization and abortifacients through employer-provided
health insurance even if they are morally opposed to such coverage.

One of these briefs, submitted
by a group of 50 Catholic theologians and ethicists, may have been instrumental
in prompting the court to issue its March 29 order for new written arguments by
both sides.

Legal analyst Lyle Denniston, who
writes for, a blog on the Supreme Court, said if the justices succeed in finding a way to make the Affordable Care Act’s contraception
requirement “work in a way that more or less satisfies everyone,” the
group of theologians “should take at least some of the credit.”

He said the court very rarely
asks for more information after oral arguments and the request was so unusual
“it may not have any parallels in the court’s history” except for the
call for expanded constitutional arguments when the court was reviewing the
school desegregation case, Brown v. Board of Education.

The 45-page brief from the
theologians is steeped in Catholic moral theology and hinges on the notion that
religious employers object to the mandate and the Obama administration’s
“work-around” — that allows them to acknowledge their opposition to
the requirement and arrange for a third party to provide the contraception coverage
— primarily because it makes them complicit in sin.

This objection, spelled out in
the theologians’ brief, is not something that can be compromised, thus pointing
to another way to make the Affordable Care Act’s requirement work, which the
court seems to be reaching for in its order.

The court proposed that religious
employers would not be asked to fill out a form or send a letter stating their objection
to contraception coverage but would simply do nothing and the insurance companies,
taking the cue from the employer’s stance, would provide the necessary contraception

Religious groups reacted
favorably to this idea, stating in a new brief that this would use the least
restrictive means for the government to protect women’s access to contraceptives
while ensuring that religious employers are not complicit in what they regard
as sinful.

Complicity in sin is not often
the topic du jour in court hearings, but it came up during the March 23 oral
arguments of Zubik. Paul Clement of the Washington-based Bancroft firm, who
was one of two lawyers representing the plaintiffs, argued that religious
freedom was at stake in the federal government’s accommodation because even
though the contraceptive coverage would be supplied by a third party, the
religious employers would still be complicit in providing something that goes
against their beliefs.

U.S. Solicitor General Donald
Beaton Verrilli Jr., in defending the federal government, argued that the
government’s accommodation was the least restrictive approach, and he also did
not think the plaintiffs, by using third parties, were complicit in what they
disagreed with, even though they have repeatedly stated this.

For all the arguments that the
religious groups should simply fill out the paperwork to remove themselves from
something they disagree with on moral grounds, the theologians’ brief pointed
out that it’s not that simple.

The brief notes
that “compliance with the mandate” by filling out a form or
submitting notice to the Health and Human Services Department would involve “either
formal cooperation in wrongdoing, or impermissible material cooperation in
serious wrongdoing.”

They gave the historic example
cited by Catholic moral theologians about a servant ordered by his master to
hold a ladder against a house so the master may “enter a window to commit
a forbidden action, such as burglary or adultery.”

“Under Catholic moral
theology, such formal cooperation is impermissible, even when committed under
duress, and regardless of whether the master actually succeeds in perpetrating
the wicked action,” the brief notes.

It also links this analogy to
the current case saying the contraceptive mandate places the religious
objectors in a situation akin to the servant who obeys a command to participate
in the master’s scheme and it likens the master to the government “which
is attempting to implement a program designed to promote the use of contraceptives
and abortifacients,” which the brief says is “plainly impermissible
under Catholic doctrine.”

If the justices find a way to reach
the type of Solomonic compromise many say they are looking for with the
contraception requirement, religious groups would have to enter new contracts
for new health plans, and the government would have to write new Affordable
Care Act regulations, which will certainly take some time but can be

If the justices are
unable to find a compromise and they reach a split decision, the contraceptive
mandate for religious groups will be interpreted differently in different areas
of the country.

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Follow Zimmermann on Twitter: @carolmaczim.

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