The Thomas More Law Center (TMLC), an advocacy law firm based in Michigan, has filed a brief in the Zubik v. Burwell case that is currently before the Supreme Court. TMLC filed an amicus curiae brief in the case in support of seven non-profits who claim they cannot comply with Obamacare’s mandate through the Department of Health and Human Services because so-called “accomodations” made for them who require them to actively violate their principles. The brief argues that neither the federal government nor the Supreme Court can arbitrate in the internal religious teachings of the groups, nor can it arbitrate sacred Scripture. According to TMLC, the court “can only determine whether the government’s penalties for refusal to complete the sinful act are a substantial burden on religious liberty.
Richard Thompson, TMLC President and Chief Counsel, says this case is a turning point in the history of the United States. He said, “The HHS Mandate is a monumental attack on religious liberty. If this appeal is lost, the government becomes the head of every religious denomination in the country by its assumed authority to determine what is in fact a sin.”
The contraceptive mandate enforced by HHS requires religious non-profit organizations to participate in providing free contraceptives, including abortifacient drugs and devices, to their employees or huge fines that would require them to close. Among the plaintiffs is the Catholic religious order, The Little Sisters of the Poor, who devote their lives to serving the elderly poor.
According to TMLC, the so-called accommodation requires non-profits to either:
“(1) fill out a form as notice of their objection to contraceptives and abortifacients and provide that form to their insurers, which includes language instructing the insurers to provide free contraceptives and abortifacients to the women in the non-profits’ health plans, or
(2) write and send a detailed letter to HHS with all of the information necessary to notify the non-profits’ insurers of their newfound obligation to provide free contraceptives and abortifacients to the women in the non-profits’ health plans.”
The notification requirements trigger the non-profits’ insurers to provide free contraceptives and abortifacients to the women in the non-profits’ health plans. TMLC argues that this notification requirement makes the non-profits complicit in the provision of a service that they find sinful, thereby causing them to sin themselves.
Agreeing with historical precedents in Supreme Court decisions, TMLC argues that the court cannot determine whether or not an act violates a person’s religious beliefs. It is the Supreme Court, says TMLC, that must accept the non-profits’ assertions that the notification requirement is indeed against their religion. To accept otherwise is to supplant the Church and the Bible with the government, allowing the Supreme Court and the government to interpret tenants of faith. “This slippery slope would subject all religious exercise to the whim of the government’s approval,” said a statement from TMLC.
“This Court has already determined that the fines for noncompliance with the HHS Mandate impose a substantial burden on employers. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2776 (2014). The ultimate question, therefore, is whether compliance is actually against the Petitioners’ religion. This is something that is for Petitioners to determine, not the Court.”
“The Court is not the arbiter of sacred scripture and cannot determine whether the notification form and letter are attenuated enough from the provision of contraceptives that they do not substantially burden Petitioners’ religion. Delving into this inquiry requires the Court to interpret Petitioners’ religious beliefs on the morality of the different levels of complicity with sin. Thomas v. Review Bd. of Indian Employment Security Div., 450 U.S. 707, 718 (1981). Therefore, the Court can only determine whether Petitioners are being compelled to do something that violates their faith—here, filling out the notification form or writing a notification letter to HHS, both of which trigger the dissemination of contraceptives and abortifacients to their employees in connection with their employee health plans.”
“While women have a right to obtain contraceptives, see Griswold v. Connecticut, 381 U.S. 479, 485-486 (1965), this does not mean they have a right to free contraceptives and abortifacients. Moreover, this right certainly does not mean that a person has the right to obtain contraceptives and abortifacients—either directly or indirectly—from their employer at the expense of pillaging the employer’s religious liberty.”
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