Debate Club

Little Sisters of the Poor Try to Turn Obamacare Upside Down

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The Little Sisters of the Poor are an order of Catholic nuns who oppose the use of sterilization, contraceptives and abortion-inducing drugs and devices. Nothing in the Affordable Care Act requires the nuns to practice sterilization, contraception or abortion. Nonetheless, the nuns filed a lawsuit – now involving the Supreme Court – to prevent other women from receiving insurance that covers those services. A victory for the nuns would turn the law's priorities upside down.

Just like all American women, those other women – Little Sisters' employees – are entitled to Obamacare's preventive health care services, which the ACA covers because Congress recognized that due to reproduction women frequently pay more for health care than men. Those employees might be Catholic women who, like the nuns, would never use contraception; Catholic women who, like the majority of Americans, use contraception and abortion when it meets their family's needs; Jewish or Protestant women, whose faith allows contraception and abortion; or women of no religious faith at all.

Like the ACA, our focus should be on their needs, not the nuns'. Unfortunately, religious opposition to women's reproductive freedom has turned the discussion upside down so that all perspective on the range of religious freedom has been lost.

[See a collection of political cartoons on the Catholic contraception controversy.]

Originally, the ACA exempted purely religious organizations, namely the churches, synagogues and mosques (where everyone is assumed to be of the same religion), from the contraceptive mandate, but required religious nonprofits like the Little Sisters or the University of Notre Dame to provide contraceptive insurance. Then the religious groups loudly objected that President Obama had declared war on religion by requiring them to obey a law that protects health access and equality. The religious groups prefer to be a law unto themselves that denies reproductive freedom to others.

Instead of insisting that the world's religious employers, who largely oppose women's equality as a matter of faith, are not entitled to operate in defiance of American law, the Obama administration created a compromise.

The Little Sisters now litigate that compromise, which requires them to sign and submit a self-certification form explaining that they have religious objections to providing preventive services. The form then goes to a third-party administrator, or TPA, who may make arrangements for the coverage to be provided. (In an important legal technicality, in the case of the Little Sisters the TPA may also be exempt from coverage, so a different case about this issue may be heard by the Supreme Court.)

[Check out 2013: The Year in Cartoons.]

The signing provision was designed to accommodate the contraceptive objectors, to show respect for their perspective and to keep them from directly providing insurance they find morally objectionable. Nonetheless, the Sisters' Mother Provincial argues that signing the form itself – a form that certifies that "the organization opposes providing coverage for some or all of any contraceptive services" – is a sin because the form authorizes or facilitates contraceptive coverage by someone else.

The Solicitor General swiftly identified the "absurd results" of Little Sisters' position: "It would seemingly mean that the Quaker could not be made to attest to his status as a conscientious objector before being absolved of his military obligations; that the Jewish prisoner could not be required to fill out a form saying he had a religious objection to the consumption of pork before he was provided an alternative meal; and that the Seventh Day Adventist could not be obligated to state that he had a religious objection to working on Saturdays before being relieved of his shift."

The Sisters' absurd position confirms that their real objection is to the practice of reproductive freedom. No theory of religious freedom, however, whether based on the First Amendment or the Religious Freedom Restoration Act, should authorize the Sisters to disobey and undermine the law or to use their power to block their fellow citizens from the law's protections.

It is upside down to let the Sisters determine the law of reproductive freedom. It is right-side up for the courts to confirm Congress's power to authorize all employers to obey the law and protect women's health.

  • Check out editorial cartoons about Obamacare
  • Read Robert Schlesinger: Thomas Jefferson Street Chamber of Commerce Is ‘Not Out Opposing Obamacare'
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  • Leslie Griffin

    About Leslie Griffin Professor of Law at the University of Nevada, Las Vegas

    Tags
    birth control
    Catholic Church
    Affordable Care Act

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