Pope Francis’ highly anticipated visit to the United States last week included discussion on religious freedom. His time in Washington, D.C., included a meeting with the Little Sisters of the Poor. The group of Catholic nuns are challenging the Affordable Care Act’s contraceptive mandate before the U.S. Supreme Court. UMass Law Professor Dwight Duncan discusses the impact of Francis’ visit and if any past cases offer predictive value in how the Supreme Court will address this issue under the new healthcare law.
Does the Pope’s visit and signal of support for the Little Sisters impact the case?
DD: Obviously not from a legal perspective, but I would say the atmospherics of Pope Francis' personal visit to the Little Sisters of the Poor in Washington, and the afterglow of his entire visit to the United States, with its repeated stress on the importance of religious freedom, certainly affects the larger context in which the Supreme Court will decide the matter. Indeed, during the impromptu press conference on his flight back to Rome, Pope Francis spoke out strongly in defense of conscientious objection: "Conscientious objection must enter into every juridical structure because it is a right, a human right. Otherwise we would end up in a situation where we select what is a right, saying 'this right that has merit, this one does not. It (conscientious objection) is a human right."
Are Justices paying attention to Pope Francis’ actions and remarks on this issue?
DD: Given the extensive media coverage of the pope's visit, it would be hard for them not to. But I do not think it directly affects their legal judgment as judges, since they are sworn to uphold the Constitution and laws of the United States in deciding cases, without fear or favor.
Do any past cases have predictive value in how this current Supreme Court may side on this case?
DD: The leading case is the Hobby Lobby decision of a year and a half ago, which was a closely-decided case (5-4) that ruled that the Religious Freedom Restoration Act allowed a for-profit family-run business to not provide free contraceptives that could cause abortion, in spite of the Obamacare contraceptive mandate that applied to most employers. Justice Anthony Kennedy was the swing vote in Hobby Lobby, so I suspect that the outcome will depend on what he thinks. Interestingly, though, earlier on Justice Sonia Sotomayor issued a temporary injunction protecting the Little Sisters from the contraceptive mandate.
When you have a case involving Little Sisters versus Big Brother, it's hard not to listen to the Little Sisters. While the government says it's no big deal, and thus not a substantial burden on their religion, for them to have to sign the proper forms in order to opt out of the mandate, and thus require a third party to furnish the free contraceptive coverage, the Little Sisters "sincerely believe that all the available compliance methods would make them morally complicit in grave sin." Whose judgment should prevail on whether the mandate is a substantial burden on their freedom of religion?
About Dwight Duncan
Professor Duncan teaches courses in Constitutional Law, Legal Ethics, Religion and the Law, and Bioethics. His interests include legal history and legal philosophy. He is an honors graduate of Georgetown University Law Center. A native Washingtonian, he practiced law there with the telephone company, now part of Verizon. Professor Duncan has written articles on legal, moral, and religious issues. He has argued several cases before the Massachusetts Supreme Judicial Court and the Appeals Court and has written briefs for the U.S. Supreme Court. He is a member of the Massachusetts and Washington, DC bars, the Board of Directors of the Pro-Life Legal Defense Fund, and serves on the Board of Advisors of Massachusetts Citizens for Life.