“When Pilate saw that he was getting nowhere, but that instead an uproar was starting, he took water and washed his hands in front of the crowd. ‘I am innocent of this man’s blood,’ he said. ‘It is your responsibility!’” (Matthew 27:24)
During Holy Week, the Solicitor General of the United States argued to the Supreme Court that the federal government may decide when a religious person has effectively “washed her hands” of any involvement in abortion. In response, the Little Sisters of the Poor argued that their consciences as informed by their Church decide when they have or have not “washed their hands” of any involvement in abortion.
Both arguments will be weighed on the scales of the “balancing test” set forth in the Religious Freedom Restoration Act (RFRA). RFRA states that the government may not “substantially burden” a religious person’s exercise of religion unless the burden (1) furthers a compelling governmental interest and (2) is the least restrictive means.
Historically, when the government has prevailed in RFRA litigation, it has argued that the compelling governmental interest is very “heavy” and the implementing means are comparatively “light”—that is, the governmental interest is important enough to outweigh the burden imposed on religion.
Here, the government relied on a different, dangerous argument focused on the “substantial burden” component of the RFRA test: the Little Sisters are not “substantially burdened” by the HHS Mandate because their religious beliefs are wrong—specifically, their religious theory of moral complicity.
The Little Sisters sincerely believe that the religious teachings of the Roman Catholic Church forbid them to sign the HHS form that authorizes and activates the dispensation of abortifacient drugs, thereby rendering them morally complicit in the destruction of innocent human life. Fifty Roman Catholic theologians and ethicists signed an amicus brief stating that the Little Sisters’ opposition to the HHS mandate “reflects a reasonable application of principles of Catholic moral theology.”
In response, the government argued that the Little Sisters’ sincere religious beliefs are wrong because the HHS forms place enough paperwork between the nuns and the abortifacient drugs to “wash their hands” of any moral complicity.
The government’s argument contravenes the First Amendment, RFRA, and Supreme Court cases interpreting the same. Whether analyzed under Free Exercise, Establishment Clause, or RFRA jurisprudence, American courts have never permitted the government to override a “substantial burden” argument by simply stating that the religious practitioner wrongly perceives the burden placed on her faith.
As the Supreme Court stated in Thomas v. Review Board of the Indiana Employment Security Division and recently reaffirmed in Burwell v. Hobby Lobby Stores, Inc., “it is not for [the Court] to say that the line [petitioner] drew was an unreasonable one. . . . Instead, our narrow function in this context is to determine whether the line drawn reflects an honest conviction.” Thomas involved a convert to the Jehovah’s Witness faith who “wrongly” believed his new church barred participation in arms manufacturing; Hobby Lobby involved Christian business owners who objected to the abortifacient drugs imposed by the HHS Mandate.
Here, there is no dispute that the line drawn by the Little Sisters reflects “an honest conviction.” Consequently, the “substantial burden” inquiry should be at an end, leaving the government to prove whether the HHS mandate furthers a compelling interest greater than the Little Sisters’ faithful practice.
Government Duplicity on Moral Complicity
The government is represented by the United States Department of Justice, “the largest law firm in the world” and the nation’s most important law enforcement organization. Every day, the Department of Justice deploys thousands of attorneys to indict, prosecute, and incarcerate violators and facilitators who are deemed complicit in wrongful conduct.
As the Supreme Court recently noted in Rosemond v. United States, the concept of facilitator liability “reflects a centuries-old view of culpability: that a person may be responsible for a crime he has not personally carried out if he helps another to complete its commission.” The Court further explained that it matters not that the facilitator “did not advance each element of the offense; all that matters is that they facilitated one component.”
The Department’s own Criminal Resource Manual explains that a defendant’s “level of facilitation may be of relatively slight moment” and that “it does not take much evidence to satisfy the facilitation element once the defendant’s knowledge of the unlawful purpose is established.” For example,
- The person who provided the lookout, the safe house, or the getaway car may be liable for aiding and abetting robbery.
- The stranger who rescues, aids, or assists the escape of a federal prisoner may be liable as an accessory after the fact.
- The co-conspirator may be liable for the reasonably foreseeable drug quantities sold by others.
- The colleague who knows of a federal crime but conceals the information may be liable for misprision of felony.
In thousands of cases, the Department of Justice does not struggle to understand or apply theories of complicity against facilitators charged with aiding and abetting, conspiracy, accessory after the fact, and misprision of felony.
Yet the Department of Justice feigned ignorance when the Little Sisters and other conscientious objectors invoked religious theories of complicity. In case after case, Department of Justice attorneys were bewildered by religious notions of complicity and even argued that the Little Sisters were “fighting an invisible dragon.”
Sadly, the Department’s feigned-ignorance argument prevailed in the Third, Fifth, Tenth, and DC Circuits, as federal judges boldly declared that the Little Sisters’ religious theory of complicity was “sincere” but wrong.
Nineteen former Attorneys General, United States Attorneys, and Senate-confirmed Department of Justice officials signed an amicus brief in support of the Little Sisters, arguing that the government “should not dismiss a religious concern that so closely parallels traditional legal concepts of complicity.” The Supreme Court should heed the advice of these law-enforcement veterans and reject the Department’s duplicity on complicity.
Exceptions are Unexceptional
The Court should recall additionally that exceptions for conscientious objectors are the rule in the American legal tradition.
Since the founding era, the United States has recognized and protected conscience rights—even in areas as vital as military service in the Revolutionary War. In the modern era, federal, state, and territorial governments have enacted myriad statutes, regulations, and rules protecting the conscience rights of Americans who abstain from practices, procedures, or products that would violate their moral duty not to kill or cause harm:
- Employees of the Department of Justice, FBI, and US Marshals are not required to participate in capital punishment, according to the Federal Death Penalty Act.
- Pacifists cannot be conscripted into armed or combat service in violation of their religion or conscience, according to the Military Selective Service Act.
- Federally funded healthcare providers cannot be required to train, perform, provide, or refer for abortion services, according to the Church, Danforth, and Hyde/Weldon Amendments.
- Legal aid funds cannot be denied because a provider refuses to assist in abortion, according to the Legal Services Corporation Act.
- ACA funds cannot be denied because a provider refuses to participate in assisted suicide, according to the Affordable Care Act
In February, forty-three members of Congress signed an amicus brief in support of the Stormans petitioner pharmacists who are compelled by Washington state law to sell abortifacient drugs in violation of their religion. Appendix A lists over 160 federal, state, and territorial laws exempting religious and conscientious objectors from having to kill or cause harm.
Because the government may easily dispense abortifacient drugs using less restrictive means, RFRA requires a similarly unexceptional exception for the Little Sisters and the other religious dissenters in this case.
On March 29, the Supreme Court ordered the parties to file supplemental briefs on whether and how employees might obtain abortifacient drugs through the Little Sisters’ health plan “in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage.”
Interestingly, the order included a hypothetical:
[T]he parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds.
Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees.
At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.
Because the hypothetical contemplates an authentic “opt-out” protocol that (1) requires less information from the Little Sisters and (2) shifts the data collection/reporting/dissemination burden to the “insurance company,” it appears that the order is seeking a less restrictive means than the current regulations. If so, the Court may have decided that the Little Sisters have satisfied RFRA’s “substantial burden” requirement and are now looking for a “least restrictive means.”
The forty-five briefs filed in support of the Little Sisters highlight numerous less restrictive means available to the government: Title X Family Planning Programs, the Exchanges, HHS clinics, tax subsidies, tax credits, and the exemptions offered to churches and integrated auxiliaries. Other less restrictive means abound in the authentic “opt-out” protocol envisioned in the Court’s order and hypothetical.
As set forth in the amicus brief filed by CNS International Ministries and Heartland Christian College, since 2010, “the government has eight times claimed that its then-current version of the Mandate was the least restrictive means and each time thereafter admitted that less restrictive means exist.”
With the Supreme Court’s recent order, maybe the ninth time’s the charm.
The government has exempted roughly 90 million Americans from the HHS mandate—including Exxon, Chevron, Pepsi, and the Department of Defense. It has refused to exempt the Little Sisters because it disagrees with their reading of Catholic moral theology. Following the Holy Week arguments, all Americans should stand with the Little Sisters and the other conscientious objectors who cannot pay to Caesar what belongs to God.
Matthew Kacsmaryk is Deputy General Counsel for First Liberty Institute in Dallas, Texas. He previously served as an Assistant United States Attorney for the Northern District of Texas and was awarded the Attorney General’s Award for Excellence in Furthering the Interests of US National Security.