The Corner

Law & the Courts

Becerra: ‘I Have Never Sued Any Nuns’

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

California attorney general Xavier Becerra, President Biden’s nominee to run the Department of Health and Human Services, was asked at his confirmation hearing on Wednesday about his record of litigation against the Little Sisters of the Poor, an order of Catholic nuns who sought an exemption from Obamacare’s contraceptive and abortifacient mandate.

“I have never sued any nuns,” Becerra said in response to a question from South Dakota GOP senator John Thune. “I have taken on the federal government, but I’ve never sued any affiliation of nuns. And my actions have always been directed at the federal agencies because they have been trying to do things contrary to the law in California.”

Becerra again emphasized later in the hearing that he was merely defending the laws of the state of California, but his claims are very misleading. 

Rich Lowry wrote on Monday about Becerra’s legal battle against the Little Sisters of the Poor

In a unanimous May 2016 decision, the Supreme Court overturned the lower-court rulings against the nuns and said the government should be able to find a better arrangement.

When Donald Trump got elected, his administration set about issuing a more complete exemption. It resolved the issue in late 2017 with a rule that no longer forced the Sisters to participate in a scheme they considered immoral while providing contraception coverage under Title X to anyone who, as a result, might lack it.

And there the matter should have remained, after five years of litigation up and down the court system, with a resolution that harmed absolutely no one. But Xavier Becerra had different ideas.

How radical is his litigation? Let’s count the ways.

First, Becerra sued after the nuns had already been through the wringer and promised, a little like the groundhog seeing his shadow, several more years of litigation.

Second, the HHS exemption has nothing to do with California. Obamacare isn’t a California law, and HHS isn’t a California agency. There is no harm to California if the federal government decides it must provide an exemption to the nuns. Indeed, it is probably unprecedented for one sovereign jurisdiction to sue to prevent another sovereign jurisdiction from changing its own rules to protect religious liberty. In a word, this is crazy.

Third, what Becerra seeks is a crushing burden on the nuns. If they don’t sign onto an arrangement that they believe violates their faith, Becerra wants them, in keeping with the Obama mandate, to be subject to daily fines that would add up to tens of millions of dollars annually. And, remember, these aren’t “corporate polluters,” they aren’t insider traders, they aren’t tech giants; they are an order of nuns founded by a saint who begged in the streets of 18th-century France so she could carry out her charitable work.

Fourth, his suit lacks all merit. There was no reason to think that a mandate created by an executive agency also couldn’t have a carveout created by an executive agency. Plus, there was never any plausible claim of any harm — Becerra has not found one alleged victim, not one actual woman, who has been prevented from obtaining contraception because of the religious beliefs of the Little Sisters. 

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