The Little Sisters of the Poor: Ordinarily in Their Homes for the Elderly Poor, but Today in Federal Court

Each Catholic religious order has its own special charism that can be seen in institutions founded by and run by members of the order. In and through their various institutions, I have personally experienced the distinctive charism of Dominican sisters, Salesian priests, brothers, and sisters, Capuchin Franciscan priests, Holy Cross priests and brothers, Jesuit seminarians and priests, and Augustinian priests and brothers, among others. It was not until earlier this year, however, that I encountered the distinctive charism of the Little Sisters of the Poor in their own distinctive institutions: homes for the elderly poor. The Little Sisters’ charism is one of hospitality, in which the Sisters strive to “be little in order to be close to the most humble, and [to] be close to make them happy.”

Like many Catholics, I was familiar with the Little Sisters from their trips to our parish to beg for funds for their ministry. I knew that they knew how to ask in a way that touched the hearts of the congregation. But it was not until I met some of the sisters at St. Joseph’s Home in Richmond (including two Sisters from St. Martin’s Home in Baltimore), and again at Jeanne Jugan Residence in Washington, D.C., that I understood on a deeper personal level the real difference that their presence makes in the lives of their homes’ residents and in the life of the Church. It’s the difference that comes from knowing that one is loved and has dignity and will not die alone, and the difference that comes from vowed women religious spreading that love, cultivating that dignity, and accompanying the dying on their final journey.

Unfortunately, however, the occasions for my visits to their homes were meetings to discuss legal matters. Like many religious organizations, the Little Sisters have needed to figure out how to deal with the federal government’s refusal to treat them as a religious employer exempt from the legal requirement to offer health benefit plans that violate their religious beliefs. The fruit of some of those earlier consultations was a set of comments in response to the federal government’s Notice of Proposed Rulemaking. In those comments, the Little Sisters respectfully requested the government “to reach a just resolution that respects the religious freedom and conscience rights of all.” And the comments expressed the hope “that it is unnecessary for us to join the scores of employers that have already resorted to the federal courts for protection.”

That hope has now met necessity, and the Sisters are now in federal court. Through two of their homes (in Denver and in Baltimore), the Little Sisters have filed a lawsuit, together with Christian Brothers Services and Christian Brothers Employee Benefits Trust (which cooperate with religious organizations in the provision of benefits). The lawsuit seeks relief from enforcement of the requirement to arrange their health benefit plans so that beneficiaries receive no-cost access to female sterilization and all FDA-approved contraceptive drugs and devices (including some with abortifacient properties).

Although aware of the Little Sisters’ religion-based objections to this requirement, the federal government has refused to treat the Little Sisters’ homes as “religious employers” that receive an exemption. Having witnessed the Sisters’ ministry in these homes and having worshipped with the Little Sisters in the St. Joseph’s Home’s chapel, this refusal boggles even the lawyerly part of my mind. These Little Sisters of the Poor homes are—in the words of Cardinal George—“icons of mercy where Christ is welcomed and served in the elderly poor with the utmost respect for their dignity.” In any ordinary time, these homes would easily be recognized as “religious employers.” But perhaps this is no ordinary time. If the federal government continues to refuse to recognize these homes as “religious employers” under the federal contraceptives mandate, then words have lost their meaning for them.

The lead lawyers on the case are from the Becket Fund for Religious Liberty and Locke Lord LLP. I am continuing to assist the Little Sisters as part of their legal team and will therefore be more circumspect than I might otherwise be in discussing various aspects of the case. But the complaint speaks for itself. And the Becket Fund has created a case page with more background, including a press release and a web video, which I encourage all to check out.

(cross-posted at Mirror of Justice)

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USA Today whiffs on RFRA and gets legal doctrine wrong in religious liberty op-ed

USA Today ran an editorial today arguing that businesses should not be able to rely on religious freedom in refusing to provide no-copay coverage for all FDA-approved contraceptive drugs and devices.  The newspaper also ran Mark Rienzi’s better op-ed for the opposite position. (HT: Mirror of Justice)

Both op-eds are written in plain English and make their points effectively. But USA Today’s house editorial is marred by a misunderstanding of existing religious liberty law. In particular, the editorial is written as if RFRA does not already exist. Instead of arguing that RFRA does not protect business corporations, as some have tried to do, the editorial simply misdescribes the state of the law. It argues that “the issue is one of balance” without describing the law that describes how that balance is to be struck. Indeed, the editorial describes “granting religious exemptions to private organizations” as “troubling” and “open to abuse,” seemingly unaware that RFRA exists and does precisely this. Although the Obama Administration has tried to carve out the category of for-profit, secular corporations from RFRA’s reach, everyone agrees that RFRA provides some “religious exemptions to private organizations.”

The editorial also is mistaken about Supreme Court precedent. Consider the following paragraph:

Over the years, plaintiffs have demanded religious exemptions from laws on racial equality, the military draft, paying taxes, child neglect, drug use, animal cruelty and more. The Supreme Court has repeatedly said no, drawing a line between laws that explicitly target or place a substantial burden on a religion and those that impose broad, secular requirements on society that people might find religiously objectionable.

This paragraph implies that the Supreme Court has said “no” to religious exemptions from laws on drug use and animal cruelty. But that is not true. In Gonzales v. O Centro Espirita Beneficente UDV, 546 U.S. 418 (2006), the Supreme Court held that RFRA provided an exemption for “drug use” in a religious ritual. (The lead party that brought the claim in this case, by the way, was a New Mexico corporation.) And in Church of the Lukumi Babalu, Aye, Inc. v. Hialeah, 508 U.S. 520 (1993), the Court held that the Free Exercise Clause protected ritual animal sacrifice by adherents of the Santeria religion; this ruling prohibited enforcement of a city ordinance justified in part by concerns about animal cruelty.

A bigger problem with USA Today’s statement of the law, however, is that it conflates laws that explicitly target religion and laws that place a substantial burden on religion, and then contrasts those two kinds of laws with laws that “impose broad, secular requirements on society that people might find religious objectionable.” The problem with this framing is that some laws that impose broad, secular requirements on society also place a substantial burden on religion. And that is why Congress passed RFRA. Unlike the Free Exercise Clause, which the Supreme Court has held to provide no protection against neutral and generally applicable laws, RFRA protects against such laws whenever they impose a substantial burden on religion. RFRA’s protections are triggered by the imposition of the burden, not the nature of the law imposing that burden. RFRA claims do not always win, of course. But RFRA places the burden on the government to satisfy strict scrutiny when a federal law imposes a substantial burden on the exercise of religion. If the Obama Administration has to satisfy strict scrutiny for its contraceptives mandate, it will lose.

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Must the Little Sisters of the Poor implement the HHS Mandate?

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:

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Conscience, con science, and coverage of contraceptives: Misuse of the IOM Report

A common claim made by supporters of the HHS Mandate is that the mandate is rooted in science: Congress and the HHS tasked an objective scientific organization, the Institute of Medicine, with developing coverage recommendations; that group met, considered the evidence, and conveyed their coverage recommendations.

Except that’s not what happened . . . at least according to the IOM itself.

The IOM Report that forms the basis of the HHS Mandate for employers of 50 or more employees to provide no-copay coverage of all FDA-approved contraceptives explicitly disclaims having considered most of the factors that go into intelligent insurance coverage recommendations. The committee that wrote the report understood its charge to focus on clinical efficacy; its assessments of what preventive services should be considered by HHS were rooted in guidance provided for primary caregivers and patients. The committee explicitly noted, by contrast, that “[c]overage decisions often consider a host of other issues, such as established practices; patient and clinician preferences; availability; ethical, legal, and social issues; and availability of alternatives.” [pp. 6-7, emphases added] In developing the IOM recommendations, “cost-effectiveness was explicitly excluded as a factor that the committee could use in developing recommendations, and so the committee process could not evaluate preventive services on this basis.” [7]

The 250-page report issued by the IOM not only explicitly disclaims coverage recommendations, but also chides the dissenting member of the committee for suggesting that the committee failed to consider how its report would be misused in formulating coverage recommendations. Rather than counter the dissent’s statement that the IOM report’s recommendations were based in large part on task force recommendations that “were never intended to provide a basis for insurance coverage determinations” [233, App. D], the majority of the committee noted that “cost considerations were outside the scope of the [committee’s] charge,” and that “HHS . . . may consider other factors including cost in its development of coverage decisions.” [235, App. D.]

All of this matters a great deal when evaluating claims about the government’s interest in forcing employers of 50 or more full-time employees to provide no-copay coverage of all FDA-approved contraceptives. The IOM report does not purport to address the relationship between no-copay insurance coverage of contraceptives and unintended pregnancy. The report cites some studies about related issues. But the report contains no evidence about the effect that the required coverage would have on the health outcomes of the relevant population.

To the contrary, the dissenting opinion notes–without contravention–that the extent to which “coverage of preventive service leads to a reduction in healthcare expenditure depends on the fraction of enrollees using the service before the service becomes covered and the magnitude of the response among enrollees who experience the reduction in out-of-pocket price.” [234 App. D.] This is common sense. If employees are using contraception because the benefits outweigh the costs regardless of insurance coverage, then their usage will not change once no-copay employer coverage is added. Instead, usage will remain constant and the mandate will only shift costs. The IOM report contains no discussion of cost-benefit considerations specific to mandated contraceptives coverage for women with full-time employment and benefits provided by an employer of fifty or more FTEs.

The problem for the government is even more acute in the cases brought by employers who offer group health plans that include no-copay coverage for most contraceptives and exclude only abortion-causing drugs and devices. The magnitude of any change in contraceptive use with and without those coverage must be really low. I have not seen any evidence (is there any?), but it is hard to believe that a woman with full-time employment and health benefits who has no-copay access to all other contraceptives will access emergency contraception (available over the counter for $40-$50) at a significantly lower rate than other women due to her employer’s lack of no-copay coverage for that back-up method of birth control.

None of this is to deny that the IOM Report is based in science. But that science is limited to clinical efficacy. And nobody disputes that FDA-approved contraceptives are clinically efficacious in reducing unintended pregnancy. That is not what the dispute is about. The dispute, rather, is about an insurance mandate. And the IOM Report simply does not speak to issues of cost and coverage. To invoke the IOM Report in response to conscience claims against the IOM-derived insurance mandate is not to fight fire with fire, but to drown conscience in con science.

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ACLU’s President on Forced Provision of “Contraception Services” Over Religious Objections–Circa 1992

On May 13, 1992, ACLU National President Nadine Strossen appeared before the House Judiciary Committee, Subcommittee on Civil and Constitutional Rights, to testify in support of the Religious Freedom Restoration Act. (Interestingly, the Obama Administration’s former Domestic Policy Advisor, Melody Barnes, also attended, as assistant counsel to the subcommittee). Strossen’s prepared testimony, now included in the legislative history of the RFRA, includes a litany of examples showing how, “[i]n the aftermath of the Smith decision, it was easy to imagine how religious practices and institutions would have to abandon their beliefs in order to comply with generally applicable, neutral laws.” Among other threats to religious practices and institutions, Strossen observed that “[a]t risk were such familiar practices as . . . permitting religiously sponsored hospitals to decline to provide abortion or contraception services . . . .”

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