They’re covering for him. But the fact is Becerra challenged an exemption that, if undone, would have forced the Little Sisters to cover birth control.
During a confirmation hearing on Wednesday, responding to a question from Senator John Thune, Biden’s HHS pick Xavier Becerra uttered the lines, “I have never sued any nuns. I have taken on the federal government, but I have never sued any affiliation of nuns.”
When I heard this remark, I thought to myself, “It’s just barely true enough that fact-checkers will run with it and claim he’s correct.”
Sure enough, they rose to the challenge. In the Washington Post, Salvador Rizzo — whose fact-checking efforts I’ve rebutted for NRO in the past — insists that Becerra “sued the Trump administration, not a group of nuns.”
According to Rizzo, “It’s misleading to say Becerra sued the nuns” because “the California attorney general has not filed lawsuits or brought enforcement actions against the Little Sisters of the Poor, a charity run by Catholic nuns.”
But Becerra’s assertion is true only in the narrowest sense: He has never initiated any direct legal action against a group of nuns. Though Rizzo doesn’t seem to notice it, the actual facts of the case expose how disingenuous Becerra’s response really was.
The case in question has to do with the Health & Human Services Department’s contraceptive mandate, which HHS attached to Obamacare requiring that every employer subsidize birth control and abortion-inducing drugs through their employees’ health-care plans.
Numerous employers, especially religious ones, took issue with the mandate and refused to comply. One such group was the Little Sisters of the Poor, a charitable order of Catholic nuns that cares for the elderly poor and sick, and which objects strenuously to covering products that violate Church teaching on the dignity of human life.
Despite the efforts of the nuns and other employers to obtain a religious exemption so that they wouldn’t have to cover or subsidize products in violation of their beliefs, the Obama administration wouldn’t budge. When Donald Trump came into office, his administration promulgated new rules, offering more generous religious and conscience exemptions to organizations whose First Amendment rights were violated by the HHS mandate.
It was then that Xavier Becerra, as attorney general of California, entered the scene. Though he never filed a lawsuit against the nuns directly, he initiated legal action against the Trump administration explicitly because it had granted religious employers such as the Little Sisters an exemption from the contraceptive mandate. From Becerra’s perspective, the mandate that employers subsidize birth control was so crucial that he, as California attorney general, needed to take legal action to ensure that no one — not even a group of Catholic nuns — could get away with refusing to comply.
A case called California v. Little Sisters of the Poor exists because Becerra’s legal action intentionally and directly threatened the religious exemptions the nuns had been granted, such that they joined the case as a plaintiff.
It’s technically accurate, then, in the most granular legal sense, to say that Becerra never sued any nuns. But the far more important fact is that he legally challenged a federal exemption specifically because, if undone, it would have forced the Little Sisters to cover birth control and abortion-inducing drugs.
Not to be outdone by the Post, the Sacramento Bee ran a similar fact-check of Becerra’s comment, noting that, yes, he “did target a federal government exemption that — if it no longer applied to [the nuns] — would have forced them to either cover contraceptives or pay fines.” Yet despite this concession, the fact-checker labeled Senator Ben Sasse “misleading” for having stated exactly the same thing.
It seems there is no limit to how low credulous fact-checkers will stoop to protect their ideological allies.