What’s at Stake in the Little Sisters of the Poor Case Against Obamacare

What’s at Stake in the Little Sisters of the Poor Case Against Obamacare

For 175 years, the Little Sisters of the Poor have been inspired by their faith to take care of the elderly poor. But now the federal government wants them to choose between their faith and their ministry and is pushing hard in federal court to force them to decide. The stakes couldn’t be much higher for people who care about and enjoy religious liberty.

Here’s why:

The facts are simple. The Little Sisters provide high-quality health insurance to their employees that, because of the Little Sisters faith, doesn’t cover contraceptives or abortion-inducing drugs. But the government wants the plan to cover those things. So it has written regulations that require the Little Sisters to either (a) directly provide the coverage on their plan, or (b) take actions–which the government calls an “opt-out”–that have the end result of allowing the coverage on their plan. (If that sounds like much the same thing to you, the Little Sisters agree with you.) And if the Little Sisters won’t do either of those things, then they will be penalized to the tune of millions of dollars a year. To the Little Sisters, both options mean violating their faith.

The government says that the Little Sisters’ religious concerns here amount to nothing more than “fighting an invisible dragon.” (If you think that’s a condescending thing to say to nuns who spend their whole life in religious service, I agree with you.) But, as a nation, we’ve always rejected the notion that the government gets to decide what your religious beliefs are. If the government wins, though, that principle will take a hit.

And for what? Contrary to the government’s “invisible dragon” mockery, the only thing frivolous about this case is the fact that the government is still pursuing it. Why on earth does the United States government need the Little Sisters and their plan to be part of its system for delivering contraceptives? The government already provides contraceptives and abortifacients directly to millions of people through programs like Title X. And, by law, it says that it is perfectly fine with tens of millions more people not getting employer-based free contraceptives and abortifacients if they work for big corporations with old, unchanged plans (which the government exempts from its scheme), or for churches (which are also exempt), or for small employers (which don’t have to provide insurance at all). 

On top of all that, the government runs health insurance exchanges, and any employee who wants a policy with contraceptives or abortifacients is perfectly free to go get one right now. If the government thinks the policies on its own exchanges are too expensive, it can subsidize them. But the notion that the only way the most powerful government in the world could provide contraceptives is by hijacking the nuns’ Catholic health plan is nonsense.

Put the last two points together, and you realize that the government is arguing that it can compel you to violate your most fundamental beliefs for no reason at all. It can both define away your faith and force you to take actions that it can do just as well itself.

But if that’s not worrisome enough, there’s more. The government is also engaged in Orwellian word games, insisting that the actions that it wants the Little Sisters to take are merely the legal equivalent of raising their hand and announcing that they cannot provide the coverage.

Not so. Last year, the government fought the Little Sisters all the way to the Supreme Court, and this year continues to fight in court despite the fact that the Sisters have already notified the world of their religious objection, including in a Supreme-Court-sanctioned notice last spring. If hand-raising was all that needed to be done, it’s been done. The government wouldn’t be fighting so hard if it didn’t need the Sisters’ involvement to commandeer their plans. The government even admitted as much this fall, conceding that it needs the Sisters to act so that it can provide abortion drugs to their employees.

In sum, if the Little Sisters win, it means that nuns need not violate their sincere faith to do things that government can do itself. But if the government wins, it means that any believer could find will find her beliefs redefined, derided, and misrepresented–and all unnecessarily. If nuns who take care of the elderly poor aren’t safe from overbearing bureaucracy, none of us are.

Daniel Blomberg is legal counsel for the Becket Fund for Religious Liberty, and a lead attorney on the Little Sisters of the Poor v Burwell case.


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