BLOG3 Revealing Quotes from the Government’s Arguments in the HHS Mandate Case

By Alliance Defending Freedom Posted on: | March 28, 2016
By: Emily Conley

Force people to violate their consciences or have women carry two insurance cards – these were the “tough” choices the Supreme Court debated at the oral arguments last week.

The Supreme Court heard arguments in the case of Zubik v. Burwell last week, a case about whether the government should be able to force religious organizations, like the Little Sisters of the Poor and several Christian colleges represented by ADF, to provide contraception and abortifacient drugs through their insurance plans in violation of their conscience.

 Despite the fact that companies like Pepsi and ExxonMobil are exempt from the mandate and that the Christian schools’ insurance plans already carry 16 of the 20 FDA-approved birth control drugs and devices included in the mandate, the government seems to think religious organizations are a threat to the health of women.

In Burwell v. Hobby Lobby Stores / Conestoga Wood Specialties v. Burwell, the Supreme Court ruled that the HHS mandate clashed with the Religious Freedom Restoration Act of 1993 (RFRA), which says that if the government substantially burdens religious exercise, it must: 1) demonstrate that it is advancing a compelling interest, 2) use the least restrictive means possible.

That was the test used again in the oral arguments last week, and some of the government’s responses revealed the gaping holes in the mandate’s logic, as well as the threat to religious freedom that it really is.

1. Yes, it makes religious organizations complicit in killing, but that’s not as big of an issue as carrying two insurance cards

While the government argues that it has provided a means for the nuns and Christian colleges to avoid complying with the mandate, the government actually requires them to comply, and forces them to provide a permission slip for the government to “hijack” their insurance plans and deliver the very thing they object to, making them complicit in providing life-ending drugs. The solicitor general readily admitted as much.

“Well, do- do you question their belief that they're complicit in the moral wrong?” asked Justice Kennedy.

“No, we do not,” stated Solicitor General Verrilli.

“Well then – then it seems to me that that’s a substantial burden.” Justice Kennedy said. “And then – and the next question is whether there is an accommodation and whether that’s the least restrictive.”

Later, Chief Justice Roberts asked the solicitor general about churches. Could the government use the same reasoning it has used to force nuns to provide contraceptives to force churches to do the same?

“… I think we could, Your Honor, yes…” the Solicitor General responded, and added that they have “constrained (them)selves,” because “that’s a normal thing governments do with respect to houses of worship.”

So, it’s only out of the goodness of the Obama Administration’s heart that it hasn’tforced churches to provide life-ending drugs through their insurance. Of course, we are seeing this in the State of California.

2. Women can’t carry two insurance cards, because it would require them to take initiative, and it’s just too complicated for them to figure out

Justice Alito kept asking, if the government really wanted to provide free abortifacient birth control to all women, why doesn’t it set up a contraception plan on the state and federal health exchanges that would allow women to access these particular drugs and devices.  Female employees at a Christian university who want to use one of the four methods of birth control that the university objects to could simply log on to the health exchange and buy a contraception plan, fully covered by the government.  

As Justice Alito described: “So she’ll have two insurance cards instead of one. She’ll have one from the employer, and she’ll have one from this plan, just as a lot of people have one insurance card for medical services and one for prescriptions … for dental or vision.”

In his response, the Solicitor General seemed to hearken back to a commercial you may recall from Obama’s 2012 campaign, featuring the “Life of Julia,” a story of a cartoon young woman who receives everything needed in life from government programs, and who without those programs, would have an unhappy, unfulfilled life.

Basically, just imagine a young woman goes to her regular doctor, she needs birth control because she may have a medical condition that requires it, and because she has an insurance plan for her healthcare and an addition plan for contraceptive care, her regular doctor says, “Sorry, I can’t help you.”

Wait, what? Justice Alito stopped him. “But why would that be? He would be paid under the contraceptive plan.”

“Because it wouldn’t be her regular doctor,” was the solicitor general’s answer.  Because regular doctors may not honor the contraception plan, so she’d have to find a new doctor. 

But that reasoning is simply false: Why would any doctor who would be reimbursed by the government at 115% refuse to accept that insurance plan? The solicitor general had no answer to that but claimed even small barriers, like having to carry a second insurance card, presented too large of a burden for women.

3. Plans on the exchange have to be comprehensive, wait … except for that one…

Justice Sotomayor added that offering a separate contraception insurance plan would violate the rules of the health exchanges, which say that all plans have to be “full-service” and comprehensive.

“Is that true with respect for every policy sold on the Exchanges?” Chief Justice Roberts asked.

“Yes, every policy sold on the Exchanges – “ General Verrilli answered.

“What about pediatric dentristy?” Chief Justice Roberts asked.

“Well, except for that one,” replied the solicitor general.

The Chief Justice clarified, “So you could have a separate health coverage product sold on the Exchanges. You, in fact, do it already.”

“You couldn’t do it under current law, Your Honor.”

To which Chief Justice Roberts replied, “Well, the way constitutional objections work is you might have to change current law.”

At which, laughter erupted in the courtroom.

In the conclusion of the arguments, Paul Clement, the attorney arguing on behalf of Little Sisters of the Poor and the Christian universities, stated, “My clients would love to be a conscientious objector, but the government insists that they be a conscientious collaborator. There is no such thing.”

It is our hope that the court will agree – there is no such thing as conscientious collaboration, only government coercion.


Learn more about the Christian universities’ stand for life and what’s at stake in this case.

Alliance Defending Freedom

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Alliance Defending Freedom advocates for your right to freely live out your faith

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