Today is the deadline to file comments on the HHS Mandate Notice of Proposed Rulemaking. Among the many groups commenting today are the Little Sisters of the Poor. Their comments filed today are available here, and their prior statements on the HHS Mandate are available here and here.
As this 2005 Wall Street Journal article explains, the Little Sisters of the Poor have “an odd business plan” for their homes for the elderly poor: “Beg for help, lavish it on residents.” But more confounding than the Little Sisters’ business plan is the idea that the federal government would force them to arrange their health coverage for their homes’ employees to ensure coverage of female sterilization and the free flow of all FDA-approved contraceptives, including abortifacient drugs and devices.
President Obama is a college sports fan, but he should know better than to think that the Little Sisters of the Poor are simply “a euphemism in college sports to describe a weak opponent.” The Little Sisters are real; the HHS Mandate burdens their religious exercise; and the Obama Administration has the power to lift that burden. Lifting that burden is also the President’s duty under federal law.
Some excerpts from the comments:
The Little Sisters of the Poor are an international Congregation of Catholic women religious serving 13,000 needy elderly people of all faiths in thirty-one countries around the world. Thirty of our homes for the aged, which together care for over 2,500 elderly poor, are located in the United States. We are filing these comments because the HHS Mandate threatens the operation of these homes. After the safe harbor ends, we may be subjected to steep financial penalties for not changing our health coverage arrangements at these homes to ensure coverage of female sterilization and all FDA-approved contraceptives, including abortifacient drugs and devices.
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Each of our homes is a separate corporate entity that files an annual Form 990 for purposes of compliance with the tax code. Because each home is a “large employer” under the Patient Protection and Affordable Care Act and is not exempt from filing under the Code provision that currently defines the scope of the proposed “religious employer” exemption, the group health plan offered by each home is not exempt from the HHS Mandate under the proposed exemption.
The fact that we have separately incorporated the homes in which we carry out our ministry to the elderly poor does not deprive our order’s religious exercise of its religious nature. Saint Jeanne Jugan, our foundress and the first Little Sister of the Poor, began her ministry by bringing an elderly and infirm woman into her own apartment and caring for her there. Since 1839, we have continued this tradition with our homes, which now operate in one of the most highly regulated segments of care providers. We have always done our best to comply with all government regulations that apply to our homes and with the highest standards of nonprofit financial stewardship. The Form 990 is an important tool for financial accountability in our religious charitable work, but it makes no sense to use the requirement to file it as a disqualifier for the religious employer exemption.
The Little Sisters of the Poor should receive a religious exemption based on what we believe and what we do rather than the corporate forms through which we carry out our ministry. The Notice of Proposed Rulemaking observes that a church should not lose its exemption simply because it “maintains a soup kitchen that provides free meals to low-income individuals.” We agree. The same should hold true for our religious order. We should not be deprived of an exemption because we maintain homes to provide shelter and loving care to the elderly poor.
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Although our homes qualify as “eligible organizations,” the proposed accommodation in the Notice of Proposed Rulemaking does not address the situation that they face under the HHS Mandate. The Notice identifies three alternative ways in which the third-party administrator of a self-insured plan might be made responsible for arranging the objectionable coverage. Each of these alternatives presupposes that the third-party administrator itself has no religious objection to arranging that coverage. But Christian Brothers Services, as another Catholic organization, shares our commitment to Catholic teaching and also objects to the HHS Mandate. Accordingly, the proposed accommodation does not offer us a path to compliance.
The federal government should not force us to counteract through the health benefits that we arrange for our employees the very same Gospel of Life that we attempt to live out in communion and solidarity with the needy elderly.
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The Little Sisters of the Poor support the expanded exemption advocated by the United States Conference of Catholic Bishops. We hope that it is unnecessary for us to join the scores of employers that have already resorted to the federal courts for protection. But we are only one group among hundreds who will be adversely affected by the HHS Mandate and we respectfully request the Departments to reach a just resolution that respects the religious freedom and conscience rights of all.
Collectivists cannot tolerate “diversity.”
Their definition of “diversity” is when everyone thinks and acts like them.
Will any of the people serving your cause actually use contraceptives etc.? I’m not sure exactly what your concern is here.
Are you saying the employees might not be all members of your faith and you want to deny them a right, regarding benefits they themselves paid for by being employees (not volunteers), to make certain health decisions pursuant to their individual faith? Why can’t you tolerate diversity like JTP supports?
What other things will “employees” be denied a right to here? What other religious institutions will hire employees and decide some sort of treatment is immoral? So, if a female employee needs to use benefits she paid for to prevent (Plan B labeled “abortifacients” by some) or abort a pregnancy because she was raped or it would seriously endanger her health, under your argument, it would be wrong to require you to follow general employee law?
Just to be clear. Mind you, given the Administration’s continuing attempt to compromise (though it seems like a trap, since then it will be attacked for selectively allowing accommodations), your organization might be given an exemption. I’m just curious about the details.
The sisters’ concerns are laid out in their statements and comments.
As to your concern: If the Little Sisters of the Poor’s homes for the elderly are exempt from the HHS Mandate, the homes’ employees will have all the health coverage that they currently have, and they will have the same rights to make health decisions that they currently have.
With respect to your question about Plan B and abortion, I don’t know what you mean by “general employee law.”
And, I responded to the comments above.
The next part is vaguely phrased. The purpose of ACA is to expand health coverage, so yes, it might require more things then “currently” in some fashion. “Decisions” here involves insurance, since we need insurance to actually be able to really make them, given the costs. Thus, when your culture of life leads to a family to decide to have a baby, it costs lots of money and they might be able to “decide” without means to pay. If they didn’t have the insurance, the ‘decision’ would be empty.
What I mean by “general employment law” is that = per rulings like U.S. v. Lee == if religious institutions decide to get involved into employment in the public sphere, they have to generally follow basic rules. There are exceptions but it seems like the institution wants to get some benefits of a particular business form without necessarily following general rules. They need not follow the form, it is just most convenient.
If someone wants to be a ‘large employer,’ especially if they are going to employee and/or serve those not members of their faith, it is fair to apply general applicable employer law. This isn’t about interfering with ministers or something. The exemption, as I said, might apply here too. The Administration has continuously, though some egregiously make them out as some tyrant on this question, to make exemptions. But, it just might be if they are a ‘large employee’ and some employee is raped and wants to use their own health care benefits for Plan B or need an abortion for a serious health reason but as has been shown it isn’t “serious enough” to meet the standards of the religious group employing them, it would be proper to require them to be able to use the insurance they paid for.
If you have not already done so, I would encourage you to read the Institute of Medicine report that forms the basis of the HHS Mandate itself. I discuss some of its limitations here, including that it does not purport to base its recommendations on issues of cost and coverage. The report is just about clinical efficacy of FDA-approved contraceptives, which nobody disputes.
The corporate form adopted by the Little Sisters in their ministry to the elderly poor is influenced by the tax code, particularly the obligations of most tax-exempt organizations to file a Form 990. The fact that their homes have to file a Form 990 while the Order itself does not has nothing to do with how “religious” either is.
United States v. Lee is a pre-RFRA case that does not undertake an analysis that is particularized to the claimant, which is what RFRA requires. Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal is thus far the Supreme Court’s only decision applying RFRA against the federal government. In ruling unanimously against the government, the opinion for the Court describes Lee as a case in which “the Government can demonstrate a compelling interest in uniform application of a particular program.” But as you have already noted in connection with the exemptions the government has granted (and not just on religious grounds, I would add), the federal government claims no such interest in uniform application with respect to the HHS Mandate.
Joe, . . . what makes abortion an ’employees right’? insurance coverage has always been proscribed as to content, by the employer, the one who pays for the benefit. employees can acquire abortion paraphernalia and drugs from any number of other sources, free of charge, or at a modest cost. the fact that the socialists/communists/radicals/leftists are now in charge of the asylum, should not give them the legal right to demand that a private employer bend to their desire to snuff out emerging lives.
[KCW: Comment mildly edited by me. No direct name-calling, please.]
[…] In a very good post Kevin Walsh , associate professor of law at the University of Richmond School of Law , looks at this. See Must the Little Sisters of the Poor implement the HHS Mandate? […]
It is unreasonable to suggest that it is necessary and proper for employers to be coerced into providing contraception, which is not Life affirming or Life sustaining in any Health Care Plan, and for those who for moral or religious reasons, object to providing contraception because it is a violation of their Faith and Mission, it is also a violation of their Religious Liberty, which does not depend on whether the employer is a profit or non profit.
Professor Walsh, keep up the Good work!