The Corner

Three Things You Need to Know about the Little Sisters of the Poor

The Supreme Court just agreed to rule on a long-brewing battle between the feds and several religious ministries. But few people even seem to know what the cases are about. For instance, the New York Times recently published an error-strewn editorial condemning the ministries—including the Little Sisters of the Poor and ministries serving orphanages overseas — as little more than dishonest fanatics fretting about paperwork. And the feds have gotten in on the act, claiming the Sisters are frightened by “invisible dragons.” So who’s right? The feds (and the NYT), or the nuns? Hint: the nuns—and it’s not even close.

1. The ministries are trying to avoid a government takeover, not signing “a piece of paper” that lets them “opt-out.”

The cases’ central conflict is simple: the Little Sisters have a health-care plan, and the government wants that plan to do things that violate the Sisters’ faith. The Little Sisters and the other ministries carefully built those plans and maintain them to provide health care that both serves the employees and doesn’t violate the Sisters’ conscience. But now the government insists on changing all that by hijacking the plans to squeeze in coverage for contraceptive and abortion-inducing drugs. If the ministries refuse and keep their plans drug-free, they face massive annual fines. The Little Sisters alone face over $70 million a year.

In a truly Orwellian twist, the government argued for a while that it wanted to let the Sisters “opt-out” of the takeover, and the Sisters were unreasonably objecting to signing an opt-out form. Media outlets like the NYT still mouth that line. In essence, the argument was that the Little Sisters were so dumb that they couldn’t take yes for an answer. But recently the government ‘fessed up’ (or at least let the mask slip) before the Supreme Court, admitting that the form is essentially an opt-in for the ministries. (No surprise—whoever heard of being fined $70 million every year for paperwork which just says what everyone already knows?)

It’s this simple: today, the ministries’ plans do not and cannot cover drugs that violate their consciences. Tomorrow, if the ministries sign the form, those plans can, for the first time, cover the drugs. To use the words of the government, if the ministries sign, “the contraceptive coverage” becomes “part of the same . . . plan” provided by the ministry. That is what the ministries object to. These cases are not about forms; they are about substance.

2. Big Government is privileging Big Business over the Little Sisters.

Many people think that the Sisters are asking for a special deal. Not even close. All small business and numerous large ones, including Exxon and Pepsi Bottling Company, are completely exempt from the mandate. All churches and some other ministries are likewise wholly exempt. But ministries like the Little Sisters are not exempt.

Bizarrely, the government’s excuse for discriminating between churches and the Little Sisters was that it assumes the Sisters — nuns who vow lifelong service to God — aren’t religious enough. Let that sink in for a second.

Instead of offering an exemption, the government concocted an “accommodation” scheme for second-class ministries like the Little Sisters. But the scheme’s a fake. A simple comparison makes that clear: the “second-class” ministries must allow contraceptives on their health plans; churches and many mega-corporations do not. That’s an accommodation that doesn’t accommodate.

3. The cases are about freedom, not contraception — the Sisters aren’t stopping anyone from getting contraceptives.

The Sisters’ plea can be boiled down to this: “Leave us out of it.” If the Sisters win, people will still be free to get contraceptives and the government can continue handing out free contraceptives (which it has paid hundreds of millions of dollars to do for decades, and which it can do even more easily now that it runs healthcare programs around the country). In fact, over and over again, the ministries have suggested many ways the government can deliver contraceptives without using the ministries.  All the Sisters are asking is that the government leave them alone. That seems reasonable: the most powerful government on earth has never needed nuns to help it hand out contraceptives before.

Which is one of the reasons why this case is so important. With such obvious and easy workarounds, this case is not about contraception or health plans. It’s about whether federal bureaucrats can force nuns to disobey their God for no reason at all. If the answer to that question is “yes,” everyone — even the bureaucrats — loses.

(Note: The Little Sisters are represented by The Becket Fund for Religious Liberty).

Peter Kirsanow — Peter N. Kirsanow is an attorney and a member of the United States Commission on Civil Rights.

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