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Neither Court Nor Government Can Determine What Is a Sin, HHS Mandate Ignores

Thomas More Law Center Files Brief in Supreme Court Declaring Neither Court Nor Government Can Determine What Is a Sin

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The Thomas More Law Center (TMLC), a national public interest law firm based in Ann Arbor, Michigan, yesterday, filed a friend of the court brief in the case of Zubik v. Burwell, in support of seven non-profit organizations including the Little Sisters of the Poor who claim they cannot comply with the Department of Health and Human Services’ mandate (“HHS Mandate”) because even the so called “accommodations” make them actively complicit in the sin of abortion.  TMLC’s brief asserts that the Court is not the arbiter of sacred Scripture and, therefore, cannot determine whether or not an act constitutes a sin; it can only determine whether the government’s penalties for refusal to complete the sinful act are a substantial burden on religious liberty.
Richard Thompson, President and Chief Counsel of TMLC, portrays this case as a potential turning point in American legal history, stating, “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 HHS Mandate requires religious non-profit organizations to participate in a government scheme to provide free contraceptives, including abortion causing drugs and devices (abortifacients), to their employees or face monumental fines that would result in closing the doors of most non-profit organizations that object to the HHS Mandate.
However, the HHS Mandate allows non-profit organizations like the Little Sisters to receive a so-called accommodation from directly providing free contraceptives and abortifacients to their employees.  The accommodation  requires the non-profit organizations 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.
These notification requirements trigger the non-profits’ insurers to provide free contraceptives and abortifacients to the women in the non-profits’ health plans. This notification requirement makes the non profits complicit in the provision of a service that they find sinful, thereby causing them to sin themselves.
TMLC’s brief argues, supported by a long line of Supreme Court precedent, that neither the government nor the Supreme Court can determine whether an act does or does not violate a person’s religious beliefs.  Rather, the Supreme Court 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.
 Excerpts from TMLC’s Amicus brief:
  • “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.”
TMLC, representing thirty-six plaintiffs including six religious non-profit organizations, has filed twelve lawsuits challenging the illegal aims of the HHS Mandate.
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