It’s hard to believe the Obama Administration is still fighting the nuns over abortion and contraception.
The Little Sisters of the Poor object on religious grounds to the government hijacking their health insurance plan to provide contraceptives including some that can cause abortions.
They’ve filed a lawsuit and today the Supreme Court heard oral arguments in the case.
The stakes are high. “The Little Sisters have 27 homes in the United States. The government is threatening fines against the Sisters of about $100 per employee per day.”
That comes to $70 million in fines per year. Or roughly one-third of the Little Sisters’ operating budget.
This is absurd especially considering that
1. “1 in 3 Americans do not have a plan that is subject to the mandate HHS is fighting so hard to force the Little Sisters of the Poor to follow.”
2. “Exxon, Chevron and Pepsi as well as other large corporations are exempt from the mandate.”
3. “The US military, which employs millions offers a family insurance plan exempt from the mandate.”
The government has already created a full exemption for churches but won’t extend the same protection to the Little Sisters.
All this looks pretty bad for the Obama administration.
But it gets worse.
On top of everything else, it turns out that contraception mandates don’t work.
That’s the finding of Michael J. New, Ph.D., an Associate Scholar and my colleague at the Charlotte Lozier Institute, who set out his findings in a brief submitted to the Supreme Court in support of the Little Sisters. (I’m listed as a counsel on the brief.)
Dr. New is a smart guy. He has a Ph.D. in Statistics from Stanford University and a B.A. in Economics Modified with Mathematics from Dartmouth College. He has served as a post-doctoral fellow at the Harvard-MIT data center and, on top of serving as an Associate Scholar at the Charlotte Lozier Institute, also serves as a Fellow with the Witherspoon Institute in Princeton, New Jersey.
Dr. New looked at state-level contraception mandates and asked whether they had reduced rates of unintended pregnancy. Dr. New’s methodology and findings were published in his 2015 academic article titled Analyzing the Impact of State Level Contraception Mandates on Public Health Outcomes.
According to Dr. New, as set forth in his brief, the data show those state-level mandates “do not lower rates of unintended pregnancy or abortion.”
Dr. New’s brief explains that “[b]etween the years 1995 and 2010 more than half the states imposed mandates requiring that at least some health insurance programs cover various contraceptives… Dr. New conducted a comprehensive review of the public health data from nearly all 50 states that allows for analysis of the impact of contraceptive mandates that were in effect in more than half the states at the time of the analysis.”
After analyzing these data Dr. New made three findings.
First, in comparing public health outcomes in states with contraceptive mandates to public health outcomes in states that did not have mandates, regression analysis conducted by Dr. New showed that the presence of a contraceptive mandate failed to have a statistically significant impact on either the state unintended pregnancy rate or the state abortion rate.
Second, in comparing public health metrics both before and after the contraceptive mandate took effect, regression analysis conducted by Dr. New showed once again that the enactment of a contraceptive mandate failed to result in a statistically significant reduction in either the unintended pregnancy rate or the abortion rate.
Third, Dr. New conducted specific analysis of five states that had a stronger contraception mandate than the others and found that the enactment of these stronger mandates failed to result in statistically significant reductions in either abortion rates or unintended pregnancy rates. Additionally, Dr. New found no evidence that these stronger mandates had a greater impact on either unintended pregnancy rates or abortion rates than the weaker contraceptive mandates.
After setting forth his findings as to state mandates, Dr. New’s brief then argues that a federal contraception mandate “will be no more effective than state mandates have been in reducing rates of unintended pregnancy or abortion.”
This analysis strikes hard at any attempt to defend the mandate as serving the policy goal of reducing unintended pregnancies or abortions. Dr. New’s brief quotes Supreme Court case law in explaining that, under the legal standard at issue in the Little Sisters case, the Court will “‘scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants’—in other words . . . [,] look to the marginal interest in enforcing the contraceptive mandate in these cases.”
Application of this standard “devastates any interest the Government might assert for the Mandate in reducing unintended pregnancy or abortion.” That’s because, as Dr. New’s analysis shows, “contraception mandates do not reduce rates of unintended pregnancy or abortion.”
“If the purpose for the Mandate is to reduce rates of unintended pregnancy or abortion, then the Government cannot demonstrate even a generalized interest in enforcing the Mandate in any case, much less a ‘marginal interest in enforcing the contraceptive mandate in these cases…’”
The Supreme Court should protect religious freedom and free the Little Sisters to serve the poor and vulnerable people who count on them.
Thomas M. Messner, J.D. is Senior Fellow in Legal Policy at the Charlotte Lozier Institute, the education and research arm of Susan B. Anthony List in Washington, D.C.