Many of us stayed up to midnight last night and watched the ball come down in Times Square. If you were still sober enough to notice, the person triggering the dissent was none other than Associate Justice Sonia Sotomayor. It turns out that that was not the only thing that she was doing on New Year’s Eve. Late Tuesday with only hours to go before January 1st — and the activation of the Affordable Care Act (ACA) — Sotomayor granted a stay requested by Catholic-affiliated groups to prevent the implementation of part of the ACA to require them to supply contraceptive services to employees in violation of their religious beliefs. The decision follows a refusal of the United States Court of Appeals for the Tenth Circuit to issue a stay. The stay order by Sotomayor was requested from Catholic nuns running the Little Sisters of the Poor Home for the Aged in Denver and now joins a stay issued earlier by the United States Court of Appeals for the District of Columbia.
The decision guarantees that no one will have morning after regrets today in allowing the law to be implemented without a final resolution of the religious freedom claims. Sotomayor could still lift the stay since she gave the Obama Administration until 10 am EST on Friday to respond to the order. Until then, the government is “temporarily enjoined from enforcing against applicants the contraceptive coverage requirements imposed by the Patient Protection and Affordable Care Act.”
The decision is a victory for the Becket Fund, which argued that “the ‘accommodation’ still forces the Little Sisters to find an insurer who will cover sterilization, contraceptive and abortion-inducing drugs and devices.”
The stay makes sense given the Court’s decision to hear similar arguments in the Hobby Lobby case discussed earlier. The case involves objections from businesses and individuals like David Green, founder and CEO of Hobby Lobby, who insist that the Act’s required support for contraceptive services violates religious rights. Two cases were accepted: Sebelius v. Hobby Lobby Stores, Inc. (13-354); and Conestoga Wood Specialties Corp. v. Sebelius (13-356).
Under the ACA, non-for-profit religious corporation have an exemption. However, Hobby Lobby is a for-profit company that is run according to the family’s religious beliefs. These new Catholic-affliated groups are not parts of the Church but educational institutions like Catholic University and other types of enterprises.
While the Obama Administration arranged for insurers to pay for such services for religious objectors, that compromise would still require the businesses to sign off on the payment for services in contradiction to their beliefs. Such stays are significant legally because they are granted on a view that the party is likely to prevail on the merits. Earlier a D.C. Circuit panel split 2-1 in granting a similar stay. Judge David S. Tatel dissented in the case, concluding “[b]ecause I believe that appellants are unlikely to prevail on their claim that the challenged provision imposes a ‘substantial burden’ under the Religious Freedom Restoration Act, I would deny their application for an injunction pending appeal.”
Putting aside that standard, the decision could reflect an accommodation for those members who granted cert in Hobby Lobby. The decision freezes the status quo and, if not reversed after Friday, would allow the Court to proceed to the merits in the Hobby Lobby case without having chaos over whether and how the provision can be enforced. That case is expected to be argued in March and decided by summer.
Go to your happy place, Nick. No black helicopters there.
Mike, it is that “unless it is contary to Catholic moral teaching” that bothers me. Has any Catholic moral teaching changed over the years? Has Catholic moral teaching been impacted by progress in health care? I’m betting it has and I’m betting that some bishop, or cardinal, or pope is writing the rules. I’d also bet that you could find one or two bishops who would disagree with one another – each coming up with a different decision impacting a patient’s care. And I bet there were lots of bishops who would not have allowed T Schiavo taken off the feeding tube were she a patient in their hospital.
If you have a well crafted living will you can stop worrying about bishops in black helicopters.
Nick. Millions of people do not, and will not, have DNRs. The fact that Schiavo did not have one should not have consigned her to be on a feeding tube for another 100 years. Just because Terry Schiavo was mentioned in a comment that also mentioned DNRs does not link the two. But that should not prohibit you from going to your happy place.
Mike, thanks for your input. My fear is that things have changed in these very polarized times,and you may find yourself in a Catholic hospital with a very conservative and “magisterial” bishop who sits at the head of the hospital’s ethics committee and he calls all the shots based on Catholic dogma as per this article:
http://www.newrepublic.com/article/116034/catholic-hospitals-lawsuit-usccb-doctrines-determine-care
When you Mom was working she may have worked in a Catholic hospital that allowed tubal ligations after a C-Section. That no longer happens. And there was the case of the Sister who was nearly excommunicated by her bishop when she ok’d an emergency abortion for a woman. The Sister headed a hospital and was probably operating on “old rules”. Things have changed and much may depend on what kind of bishop heads the committee.
Sorry. Under these kinds conditions I am not assured that MY wishes will be followed and I will bet you that sooner or later we will be reading about an authoritarian bishop who found something wrong with someone’s DNR much to that patient’s or his families surprise. I can’t offer “hard” evidence about this yet, but I find this suit by the Little Sisters suggestive of very unreasonable and political positions.
Elaine:
What I am suggesting is that what is done in actual practice is to comply with the family’s wishes, and that includes honoring living wills and the decisions of health care surrogates. Thus, Directive 59 provides, “The free and informed judgment made by a competent adult patient concerning the use or withdrawal of life-sustaining procedures should always be respected and normally complied with, unless it is contrary to Catholic moral teaching.”
Mike,
“Medically assisted nutrition and hydration become morally optional when they cannot reasonably be expected to prolong life or when they would be “excessively burdensome for the patient or would cause significant physical discomfort, for example resulting from complications in the use of the means employed.’ ”
*****
That means that it’s a judgment call–and there’s no guarantee that one’s wishes will be honored by a Catholic hospital.
There was no DNR. That was the core of the controversy. Everyone should have a living will and specify their wishes under different circumstances. Again, that turning a negative into a positive I love. The Schiavo case motivated many people to do just that.
Elaine:
Directive 58 in the guidelines does provide for nutrition and hydration. However, it also states, “Medically assisted nutrition and hydration become morally optional when they cannot reasonably be expected to prolong life or when they would be “excessively burdensome for the patient or would cause significant physical discomfort, for example resulting from complications in the use of the means employed.’ ”
The Sciavo case was particularly problematic because those opposed to taking her off life support insisted that she had some cognitive functioning, a false hope that was cruelly encouraged by groups whose primary interests were in lobbying for the abolition of abortion rights.
Nick, you did you own CYA on Terry Schiavo by saying it was “complex and sensationalized”. Sure it was. So what. And my question did not ask what hospital was caring for Schiavo. I asked the Church’s position. And the Church’s position was clear-cut. I know you don’t like documentation but maybe you will make an exception
http://www.catholicnewsagency.com/news/vatican_addresses_terri_schiavo_case_endoflife_issues/
That tells me my family had better never put me on a vent or feeding tube in a Catholic hospital. They’ll keep you on it ’til the end of time. Lovely folks.
The controversy over contraception coverage became muddled when the administration began granting exemptions. I do not believe that any exemptions are necessary to protect religious freedom. And once the process of granting exemptions begins, it has no end.
In addition, the argument that one should not be compelled to do something contrary to one’s religious conscience is simply an invitation to anarchy.
With regard to the issue of DNRs and Catholic hospitals, pdm is incorrect. My mother was an RN who worked in both Catholic and non-Catholic hospitals from the early 1940s until her death some years ago. The traditional practice in all hospitals was for such decisions to be made informally by families and attending physicians. DNRs eventually became formalized by statute. The Schiavo case was a travesty fueled by publicity seekers. The Catholic Church has never argued that extraordinary methods must be utilized to artificially prolong life.
pdm,
Catholic Hospitals: Doctrine Trumping Patients’ Wishes
10/07/2012
http://www.lifemattersmedia.org/2012/10/catholic-hospitals-doctrine-trumping-patients-wishes/
Nick, admittedly my info on the DNRs was anecdotal and did a CYA by saying “some”. However the Roman Catholic Bishops Council (I may have mangled their title) runs the show and has directives on care allowed. Will you please use your skills and provide backup to your assertion that DNRs are honored?
pdm, You are simply incorrect. Catholic Churches honor and abide all DNR’s, the Vatican has decreed that. The Schiavo case was very complex and sensationalized. However, none of the four hospitals where Ms. Schiavo was treated were Catholic.
What kind of amazes me is the fact that rightists are all for women not using birth control and having babies, yet they resent the pregnancy coverage underthe ACA.
Elaine, sorry. I see you addressed the Catholic hospital issue. Although you question was rhetorical, I’ll offer my opinion. The Church is against withdrawing support for a patient. Once you’re on a vent or a feeding tube, expect to stay on it until you recover. And Catholic hospitals often do not respect DNRs. Does anyone remember their position with Terry Schiavo?
The bigger concern is the Church’s growing monoply on hospitals – particularly in rural areas. Besides the obvious problems concerning women’s health, what about end of life decisions? If the Church is allowed to prevail, there will be problems with feeding tubes and DNRs.
There are so many different religious beliefs that various employers hold. I wonder how the SC is going to weed through the beliefs that should be enforced on the employees and which ones should be ignored? If it finds in the favor of The Little Sisters of the Poor, it’s going to open the door to other devoutly religious employers to do the same. This is why I think they won’t win this case. What is to stop some unscrupulous employer to invent some religious belief because the medical treatment may be too expensive and raise his insurance costs.
Elaine: Nor can he/she join the armed forces in the future to defend our country in order to avoid any needed blood.
Teji,
I guess, then, if a Jehovah’s Witness owns a business, that owner shouldn’t be required to pay for health insurance that covers blood transfusions for his/her employees.