The Corner

Law & the Courts

Biden Says He Would Rescind Exemption for Little Sisters of the Poor

Joe Biden speaks during a campaign stop at Tougaloo College in Tougaloo, Miss., March 8, 2020. (Brendan McDermid/Reuters)

Presumptive Democratic presidential nominee Joe Biden issued a statement Wednesday evening in which he said he is “disappointed in today’s U.S. Supreme Court decision” in the case Little Sisters of the Poor v. Pennsylvania.

“I will restore the Obama-Biden policy that existed before the [2014 Supreme Court] Hobby Lobby ruling,” Biden said.

The Supreme Court’s Little Sisters decision upheld the Trump administration’s rule exempting conscientious objectors from Obamacare’s birth-control and abortifacient mandate, but the decision did not address whether the mandate is itself a violation of the Religious Freedom Restoration Act. 

Here’s Biden’s full statement: 

Health care is a right that should not be dependent on race, gender, income or zip code. Yet as a result of today’s decision, countless women are at risk of losing access to affordable, preventive care. 

I am disappointed in today’s U.S. Supreme Court decision that will make it easier for the  Trump-Pence Administration to continue to strip health care from women – attempting to carve out broad exemptions to the Affordable Care Act’s commitment to giving all women free access to recommended contraception.

As a result of the Affordable Care Act, more than 60 million women – including at least 32 million women of color – gained access to this preventative health care. The Obama-Biden Administration did this while also providing an exemption for houses of worship and an accommodation for nonprofit organizations with religious missions.

As disappointing as the Supreme Court’s ruling is, there is a clear path to fixing it:  electing a new President who will end Donald Trump’s ceaseless attempts to gut every aspect of the Affordable Care Act.  If I am elected, I will restore the Obama-Biden policy that existed before the Hobby Lobby ruling: providing an exemption for houses of worship and an accommodation for nonprofit organizations with religious missions. The accommodation will allow women at these organizations to access contraceptive coverage, not through their employer-provided plan, but instead through their insurance company or a third-party administrator.

The so-called “accommodation” is the very policy that the Little Sisters of the Poor, an order of Catholic nuns that provide care to the elderly, were fighting in court on the grounds that the policy still required them to violate their moral and religious convictions. 

Columnist Charles Krauthammer wrote in 2012 that the “accommodation” was was a “farce” and an “accounting trick” that was “morally meaningless”: 

President Obama’s birth control ‘accommodation’ was as politically successful as it was morally meaningless. It was nothing but an accounting trick that still forces Catholic (and other religious) institutions to provide medical insurance that guarantees free birth control, tubal ligation and morning-after abortifacients — all of which violate church doctrine on the sanctity of life.

The trick is that these birth control/abortion services will supposedly be provided independently and free of charge by the religious institution’s insurance company. But this changes none of the moral calculus. Holy Cross Hospital, for example, is still required by law to engage an insurance company that is required by law to provide these doctrinally proscribed services to all Holy Cross employees.

Indeed, more than 500 scholars and religious leaders signed an open letter that argued the “so-called ‘accommodation’ changes nothing of moral substance and fails to remove the assault on religious liberty and the rights of conscience which gave rise to the controversy. It is certainly no compromise.”

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