Supremes 'tilt playing field' in abortion pill arguments

Supreme Court Justices 2015

The Obama administration adopted the "secular amorality" of a committee from the Institute of Medicine in demanding religious groups, such as the Catholic Little Sisters of the Poor, fund abortion pills for employees, charges a brief filed with the U.S. Supreme Court.

And now the high court has "tilted the playing field" by excluding First Amendment arguments from its discussion of the mandate that religious employers cover abortion pills in their insurance plans, the brief contends.

"It can be seen that this court, by excluding any briefing of the Free Exercise issue in this case, has tilted the playing field – making it virtually impossible for the petitioners to achieve a meaningful victory," says the brief submitted by the attorneys at William J. Olson, P.C., and the United States Justice Foundation on behalf of the USJF, Eberle Communications Group, Public Advocate of the U.S., Citizens United Foundation, Virginia Delegate Bob Marshall and others.

The Supreme Court has agreed to rule on whether the government's interest in a private medical group's "overarching objective of promoting and facilitating a secularized sexual lifestyle for women without the need to incur any out-of-pocket costs to prevent or terminate an unwanted pregnancy or sexually transmitted disease" warrants ordering religious employers to violate their First Amendment-protected right to exercise their religious beliefs.

The brief noted that the 10th Circuit even went so far as to determine what Catholics must believe regarding the issue.

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"The position of the government in this case is that it should have the raw power to compel the Little Sisters to yield its religious principles in service to the pro-sexual license, pro-contraception, pro-abortion, agenda of the Obama administration. The disdain shown for the biblically based and Catholic doctrine inspired petitions is demonstrated by the willingness of HHS to grant a variety of exemptions to other employers, including those who are political allies of the Obama administration, while refusing to lift the government's boot off the neck of the Little Sisters," the brief states.

"Perhaps the apex among a host of acts of governmental arrogance in this case was displayed not by HHS, but when the U.S. Court of Appeals for the 10th Circuit acted as if it had ecclesiastical powers of absolution, having decreed that by just signing a paper, Little Sisters would not be 'morally complicit in providing contraceptive coverage.'"

The lawyers says one would expect that "on the issue of who the God of Heaven and Earth will hold 'morally complicit,' it would be the Little Sisters which would have the greater expertise than a federal judge."

The mandate for abortion-pill funding was written by the private Institute of Medicine, the brief notes, not by Congress.

"The IOM committee which wrote the report in question was narrowly drawn from one branch of medicine – allopathic medicine. It was devoid of any interest in or expertise concerning moral or other issues. The IOM committee is best viewed as a thoroughly secular entity with a materialistic view of man's body as mere matter in motion. In no way could it be said to reflect, or even have any expertise in, the soul or spirit of man, to say nothing of matters of theology, including, for example, Roman Catholic doctrine and beliefs guiding the lives of the Little Sisters."

The committee's demands promote "a one-dimensional view of the educational and counseling components of family planning services, and without any moral constraint on sexual activity, focuses exclusively on maximizing the 'availability of contraceptive options.' Underlying this goal is the unproved assumption that the contraceptive mandate is necessary not only for women's health, but also for her 'well-being.'"

The brief explains there are First Amendment principles supporting the Little Sisters and others, but the Supreme Court said the only arguments that would be reviewed concern the Religious Freedom Restoration Act, which establishes conditions under which the government can make a demand that violates religious beliefs.

"This court's refusal to consider the First Amendment constitutional issues takes the process of constitutional exclusion one step beyond that which occurred last year in the case of Burwell v. Hobby Lobby Stores," the brief says.

In the Hobby Lobby case, the court decided the government could assign the cost of abortions demanded by employees to taxpayers rather than the company's health insurance program, citing the RFRA law but excluding First Amendment discussion.

It said the law's requirements for a "compelling interest" and a "least restrictive" method were not met, providing only a narrow window of protection.

"The protection of religious liberty promised by RFRA proponents was dramatically overstated. ... [The law] actually makes it the law of the United States that, under certain circumstances, as in the seemingly unreviewable opinion of a majority of the nine unelected lawyers then sitting on this court, the government 'may substantially burden a person's exercise of religion ...' when the government's claimed interest really mattered."

The brief said the court "should revise the questions presented on which certiorari is granted, and ask the parties to participate in supplemental briefing on the Free Exercise Clause issue. Unless this court pushes this 'reset button,' it could easily reach a decision that RFRA provides no statutory protection for petitioners, forcing them to be morally complicit in facilitating abortion, even though a decision reached under the Free Exercise Clause would have demanded the opposite result."

Such a conclusion, the lawyers warned, "would deserve no respect from the American people."

The Supreme Court already has ruled several times on Obamacare, the first time redefining all the "fees" in the law as "taxes" so they would be constitutional. The justices also ruled that any insurance exchange "established by the state" also means anything set up by the federal government.

However, the court ruled in the Hobby Lobby case that such employers cannot be required to participate in some parts of the law.

The justices recently refused to look into the fact that although the Constitution requires tax-revenue bills to start in the House, Obamacare was written and launched in the Senate. It was adopted by only Democrat votes in both the House and Senate.