Bench Memos

Law & the Courts

Religious Freedom and the Little Sisters of the Poor

Sister Loraine McGuire with Little Sisters of the Poor speaks to the media in Washington, D.C., March 23, 2016. (Joshua Roberts/Reuters)

When the Supreme Court gets fully back to business again in May after a brief COVID-19 hiatus, one of cases the justices will hear oral arguments in — by phone — will be the continuing saga of the Little Sisters of the Poor’s stout defense of service to the poor and vulnerable consistent with their religious beliefs.

Haven’t the Little Sisters been there, done that — and won in the Supreme Court? Hasn’t this small religious order of women founded to tend to the elderly poor already beaten back the Affordable Care Act’s mandate that the health insurance they offer their employees include contraceptives, abortifacients, and sterilizations?

Yes, the Supreme Court directed the Obama administration in 2016 to work with the Little Sisters to “arrive at an approach going forward” that would resolve the Little Sisters’ objections to the mandate. But Obama’s appointees failed to do so before leaving office. The Trump administration fashioned a broad and acceptable accommodation of religious objections to the mandate, but attorneys general from Pennsylvania and New Jersey refused to accept this regulatory accommodation. They ran to court and obtained something extraordinary — a nationwide injunction against the new rule. Their astonishing claim: The federal government is somehow powerless to guard against its own encroachment on religious freedom.

The Little Sisters have refused to back down, because, serving elderly poor is part of their calling as Catholics. Catholics faithful to the teaching of the Catholic Church. So, they’re back at the Supreme Court.

An amicus brief filed by The Catholic Association Foundation in the case highlights all the good works that would be lost if the Little Sisters and other Catholic organizations are forced to shut down. It chronicles the historic and current-day contributions to the social good by Catholic-run organizations.

It’s not too much to say that the story of Catholic charitable work and community uplift is the American story. From our nation’s Founding to the present, American Catholics have consistently served the poor and vulnerable at home and abroad. Along the way, American Catholics have ministered to the sick and the hungry, the deprived and the downtrodden, the lost and forgotten of all creeds and colors. Religious orders founded by American women Saints Elizabeth Ann Seton, Katharine Drexel, and Mother Frances Cabrini opened schools, orphanages, hospitals, and charitable missions that formed a vital part of our country’s social safety net.

The past, it turns out, is prologue. Today, Catholic-run organizations are the largest non-governmental providers of health care, education, and charitable services to the poor and vulnerable in America. Catholics partner with local and state governments to address the growing foster-care crisis and to find “forever homes” for children in need of adoption. They also minister to the needs of immigrants at our border, run food banks and soup kitchens, support pregnant women in need, stand against human trafficking, and respond to the humanitarian crises that follow natural disasters, armed conflict, and religious persecution.

In the COVID-19 pandemic, for example, the Knights of Columbus recently launched a “Leave No Neighbor Behind” initiative to encourage members to support local food banks and donate blood. The two-million-member Catholic fraternal organization is meeting the challenges of this pandemic the same way the Knights have responded to every great crisis of American life — the two World Wars, the Great Depression, the civil-rights struggle — since its founding in 1881.

The Knights of Columbus, like the Little Sisters of the Poor, serve the vulnerable and needy as an expression of Catholic faith, consistent with Catholic teaching on human sexuality and respect for life. Violating Church teaching in order to continue to be a vital part of our nation’s social safety net would make them Catholic in name only.

The two state attorneys general advance the extreme position that the federal government cannot act to secure and protect the religious freedom of nonprofits with religious objections to providing contraceptives, abortifacients, and sterilizations in their health-insurance plans. This flawed argument sets up the federal government for a future of contentious battles with all kinds of religious groups. Worse, it forces religious organizations into controversies unrelated to the needs of those they aim to serve.

Enforcing the Affordable Care Act’s mandate without the Trump administration’s broad religious accommodation will push Catholics out of the nation’s public square. For the sake of religious freedom and the care of our most needy and vulnerable, the Supreme Court should put an end to these state officials’ latest expression of hostility to Catholicism. It’s high time to leave the Little Sisters of the Poor and other religious organizations in freedom and peace.

Andrea Picciotti-Bayer is Legal Advisor for The Catholic Association Foundation and co-host of the syndicated radio show Conversations with Consequences.

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