The Corner

Law & the Courts

The Little Sisters vs. Big Brother

This Wednesday will be a first. Specifically, it will be the first time that Catholic nuns will have a case heard before the Supreme Court. In what feels like a throwback to the anti-Catholic bigotry of the 1800s, the Little Sisters of the Poor will make their final plea with the federal government not to force them to choose between practicing their faith or getting hit with $70 million in fines.

Despite already losing a much more complex case in Hobby Lobby, involving whether the government has the right to force the owners of closely-held corporations into providing services that violate their religious beliefs, the ideologues in the Obama administration are still hanging on by their fingernails; they want to take just one more swing. Their target? Religious groups that don’t meet the IRS’s definition of “religious enough.” Groups like Little Sisters of the Poor.

But, as their lawyers at the Becket Fund have put it — these ladies will have nun of it.

It also feels a bit like a return to early 1900s, when tycoons in bed with government cronies got special protection for their monopolies, while little business guys got crushed. Here, the government granted waivers from the Obamacare mandate to big corporations like Exxon Mobil, Chevron, IBM, Visa, Coca-Cola, Pepsi, Home Depot, and Boeing, among many, many others. The Little Sisters, on the other hand, received no such favors.

Perhaps in the eyes of the Obama administration, those corporations are too big to fail under the weight of complying with Obamacare, but who’s really going to notice if the Little Sisters of the Poor go quietly into the night? The people they serve — the destitute and dying elderly — aren’t going to be storming Capitol Hill looking for answers. No sleek lobbyists for them.

Indeed, the health-care plans of one in three Americans are exempt from providing the very goods and services, things like the week-after pill, (which no one really denies is a chemical abortifacient), that the Sisters object to. But the nuns just can’t catch a break. The government likes to claim that the Sisters are just “objecting to objecting” to the mandate, but the fact remains that the nuns would still be providing — directly through their health-care plans — services that violate everything the nuns have committed their lives to promoting.

And for no good reason. The government itself, in its brief before the Court, waxes un-poetically about just how successful the health-care exchanges have become, thanks to their victory in King v. Burwell. The government explicitly points to a litany of health-care options available to Americans, and states that “all of those sources” would be able to give American women the services the nuns cannot in good conscience provide. In other words, this is a completely unnecessary fight they have picked with the Little Sisters, who ask simply for the same treatment under the law as credit card companies.

Perhaps the government is hanging their hopes on some conflicting circuit-court rulings, holding out for the possibility it might be able to save some face or satisfy their constituents at Planned Parenthood. But they shouldn’t bank on it. The Obama administration has been on a losing streak when it comes to religious liberty, including a devastating 9-0 loss in Hosanna Tabor, another case litigated by the Becket Fund.

There is some concern that Justice Scalia’s death puts a victory for the Little Sisters in jeopardy with a 4-4 split. But that analysis is based on the way the chips fell in Hobby Lobby, a more complicated case being litigated when the very fate of the individual mandate was not yet decided. This one should be a no-brainer. The government cannot force the Little Sisters to violate their First Amendment rights and provide services that are already, as the government readily admits, easily available on the (now Court-affirmed) exchanges. Especially when the government won’t even force soda companies to provide the same services.

There’s a first for everything. But maybe this is the beginning of the end for the HHS mandate.

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

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