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Do contraceptive rules make religious groups 'complicit in evil?'
Whether filling out a government form, or writing a letter, makes a group 'complicit in evil' is at the heart of a new appeal to the Supreme Court over provisions of the Affordable Care Act related to contraception. - photo by Mark A. Kellner
Does requiring a group of Roman Catholic nuns to sign a piece of paper stating their objection to providing contraception coverage make them complicit in an evil act? One group says it does, and the question might soon find a nonreligious referee in the Supreme Court.

The Little Sisters of the Poor, a Denver-based order providing care for indigent elderly people, is at the center of the argument. On July 14, a federal appeals court ruled if the group will not provide contraceptive coverage for their employees, the nuns must sign a notice to the federal Department of Health and Human Services saying the group objects to paying for such coverage.

But the Little Sisters say this still makes them "complicit" in providing medications that go against their beliefs and thus partners in a moral transgression. Their argument is that it allows the government to utilize their third-party insurance administrator to pay for things they wouldnt countenance. Instead, they say, the government could set up its health insurance exchange to provide, and pay for, contraceptives and not involve any group that has a faith-centered objection.

The Roman Catholic Church believes providing or using any form of artificial contraception is morally wrong. Along with Catholics, several Protestant denominations object to abortifacient drugs as enabling a sinful act. Houses of worship are automatically exempt from federal rules requiring them to provide such drugs, but schools, colleges and charitable groups such as the Little Sisters are not. These groups can gain an exemption by either completing a government form or signing a letter stating they object to providing this benefit on religious grounds.

So far, five federal circuit courts of appeal have rejected the contention that signing the form makes a group complicit in the provision of contraceptives, including the 10th Circuit that dismissed the Little Sisters' argument in a July 14 opinion. It said informing the government of an objection is no more onerous than "obtaining a parade permit a routine, brief administrative task," and that having to complete government paperwork does not burden a group's religious rights. That move has triggered an appeal to the Supreme Court.

The disagreement over the issue of "complicity" has legal and religious implications, each of which can vary according to specific circumstances and, in the case of religion, by denomination. The legal determination of what constitutes "complicity" is one thing, and some say courts should not be the ones to decide such things for religious individuals. But the outcome of the current cases may hinge not on complicity, but rather on what constitutes a "substantial burden" on a group's free exercise of religion.

Hannah C. Smith, a senior counsel with the Becket Fund for Religious Liberty, a Washington-based public interest law firm representing the Little Sisters, said the nuns become complicit in something they consider evil and risk "losing their First Amendment rights" to freely exercise their religion if the Supreme Court doesn't hear their appeal.

But one legal and religious scholar, Professor Robert W. Tuttle of George Washington University Law School, suggests the argument that the nuns are complicit in something they disagree with is being used to cover the religious nonprofit's real objection, which is not so much to the paperwork as it is to the provision of contraceptives in the first place.

"These cases now make it really clear that the only thing that would make the (Little Sisters and similar) institutions happy is if their employees did not receive subsidized contraceptives," said Tuttle, a Lutheran who holds a religious ethics doctorate and a law degree.

What is complicity?

The question of what constitutes complicity in an immoral act is complex from both legal and moral standpoints. Any viewer of formulaic police dramas such as "Law & Order" or "Blue Bloods" will recall on-screen detectives telling the friend of a suspect that just by providing a car ride or standing outside as a lookout, the nonacting person is just as guilty as the person who knocked over the bank or pulled a trigger.

In the real world, Tuttle explained, the question of what constitutes legal complicity can be more complex. A taxi driver who delivers a robber to a bank branch isn't complicit unless the driver knows his passenger is about to commit a felony. But if a robber tells a taxi driver a heist will take place and promises to "make it worth his while" by sharing some of the loot if the driver waits outside, then the cabbie is legally complicit in the crime.

The rules are less clear when it comes to what it means to be morally complicit, and different theologians offer varying assessments.

Dr. Marie Hilliard, a Roman Catholic canon lawyer and registered nurse who works in public policy for the National Catholic Bioethics Center in Philadelphia, said signing a form "is something that makes the Little Sisters complicit in what we consider the evil of contraception and abortifacients. It gets to the whole issue of intent because the signing of the forms indicates that the employers are indicating that the intent is for their employees to get this same coverage."

Other Catholic leaders disagree. The Rev. Thomas Nairn, a Franciscan priest who serves as senior director of ethics for the Catholic Health Association of the United States, told reporters at the 2013 convention of the Religion Newswriters Association in Baltimore his group differentiates between a "mandate to perform versus a mandate to facilitate others" to perform, the latter being morally permissible.

At the same event, Andrew Getz, a physician and professor of Catholic Medical and Biomedical ethics at St. Mary's University in San Antonio said the church's thinkers have spent centuries developing theology about the relationship between actions and consequences. For example, a factory selling a gun to a wholesaler is an action, but that wholesaler sells the gun to a store where it's purchased by someone who uses it in a crime is a consequence.

Getz said the level of proximity to the moral wrong is important, and in his opinion, the HHS rules finalized in 2012 were not close enough to create complicity. Since then, it could be argued, even greater separation is provided by the ability to notify HHS officials, who in turn work with insurers and third-party administrators.

The idea of moral complicity isn't being used only by Roman Catholic groups who object to all or part of the HHS rules. East Texas Baptist University and Houston Baptist University cited the complicity argument in asking the 5th Circuit Court of Appeals for an injunction against the mandate's contraceptive requirements, claiming protection under the 1993 Religious Freedom Restoration Act.

In rejecting the request, federal Judge Jerry E. Smith wrote, "The acts the plaintiffs are required to perform do not involve providing or facilitating access to contraceptives, and the plaintiffs have no right under RFRA to challenge the independent conduct of third parties," specifically their insurance companies or plan administrators.

One Baptist pastor, the Rev. Wesley Spears-Newsome of Durham, North Carolina, said the two universities were being inauthentic.

"Unless those institutions have taken dramatic steps to divest themselves from, stop doing business with, and are active agents in opposition to (the) forces of evil in the world, they have little ground to stand on by simply appealing to complicity," he wrote at the Baptist News Global website.

But wherever the moral answer lies, the Becket Fund's Smith said, it's a question for theologians to resolve.

"Federal courts have no business making those sorts of religious judgments about what constitutes moral complicity," she said.

High court's view

Filing an appeal does not guarantee the Little Sisters' case will reach the Supreme Court. Historically, the court has tended to accept such appeals when there is a split among the circuit courts. So far, in five cases brought before these regional panels, the verdict has been unanimous, declaring that filling out a government form isn't the same as handing out a "morning after" pill.

Smith said four similar cases remain to be decided by federal appeals panels, and that means the desired "circuit split" might still occur. What's more, she said, "plenty of district courts" have ruled in favor of objecting groups, and "all of these issues have been very well vetted" in the federal judicial system.

The Supreme Court's 2014 Hobby Lobby ruling and other decisions related to the birth control mandate might be instructive. In the Hobby Lobby case, the majority opinion said an opt-out mechanism such as the one available to the religious nonprofits was an acceptable alternative for those who have moral objections to contraceptive coverage.

And while the Supreme Court granted a temporary injunction against the HHS mandate to evangelical Wheaton College last year, Justice Sandra Sotomayor dissented from the move, dismissing the Illinois school's complicity argument.

"Wheaton is mistaken not as a matter of religious faith, in which it is undoubtedly sincere, but as a matter of law: Not every sincerely felt 'burden' is a 'substantial' one, and it is for courts, not litigants, to identify which are," Sotomayor said.

The "substantiality" of the burden, as opposed to the matter of "complicity," might decide things in the end, law professor Tuttle noted.

Tuttle said he "would be very surprised if a majority of the Supreme Court says the (religious nonprofit) claimant gets to decide what a substantial burden is; that the government and the courts have no role in determining what a substantial burden is."

Without such a function, he added, "you really undercut a wide variety of regulatory structures and make them amenable to an almost unbelievable array of challenges which they can meet (only) with one hand tied behind its back."
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