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Not taking "Yes" for an answer?

The case of the Obama administration v. the Little Sisters of the Poor (the theatrical sound of it is almost worthy of a Nast cartoon) is one of the many, many court cases over the HHS contraception mandate -- some of which (specifically, the issue of for-profit companies with religious owners) will be sorted out this term by the Supreme Court.

The fate of the faith-based cases will likely come later, as they are still making their way up through the appeals courts. But the issue of the Little Sisters of the Poor is front and center since Justice Sonia Sotomayor issued a New Year's Eve injunction delaying enforcement of the mandate so the nuns would not have to comply.

The sisters operate a network of nursing homes around the world for the poor. It's not clear how many employees they have--their counsel, the Becket Fund, hasn't supplied that information)--but they don't want to provide contraception coverage for them and they say that the administration's much-debated (on this blog and elsewhere) accommodation for such religious entities is, to say the least, inaedquate.

The accommodation requires that a faith-based group like the Little Sisters (or the University of Notre Dame or a Catholic hospital etc) sign a form certifying their religious status and their objections and then a third-part administrator (TPA) unconnected to the religious entity will contact and contract with (if so desired) the employee to provide the contraception coverage. There is no payment from the religious employer and no other entanglement.

The Little Sisters and others say instead that signing the form is a "permission slip" that means they authorize someone else to undertake an immoral action, which would make the nuns culpable.

Lots of groups assert the same thing, but the unusual aspect of the Little Sisters' case is that their own insurer, Christian Brothers Services, is exempt from having to provide the coverage as well. So neither the Little Sisters nor any TPA will provide the coverage.

As Solicitor General Donald B. Verrilli Jr. wrote to the high court in response to Sotomayor's injunction:

“With the stroke of their own pen, applicants can secure for themselves the relief they seek from this Court — an exemption from the requirements of the contraceptive-coverage provision — and the employer-applicants’ employees (and their family members) will not receive contraceptive coverage through the plan’s third-party administrator either."

Yet the sisters' lawyers at the Becket Fund (which is leading much of the legal action against the mandate) confounded reporters during a conference call last week because they could not explain what risk the nuns were running if both they and their insurer did not have to do anything that would provide or even trigger any contraceptive coverage.

After repeated requests to explain, Becket Fund attorney Eric Rassbach finally said of the administration: “I think they’re just trying to fool the press, frankly."

I know there's no love lost for the White House, but to claim that they are lying to the Supreme Court and will turn around and fine the sisters seems more than a stretch. The administration would get hammered if it did something like that. Moreover, the plain language of the regulations say what Verilli says -- that neither the sisters nor their insurer can provide contracepive coverage. Michael Hitzik at the LA Times deconstructs it all quite well.

I haven't seen anything from the nuns' defenders that really clarifies the situation. At Mirror of Justice, posts by Kevin Walsh here and here don't address this issue and merely assert that the accommodation (which isn't the issue here) is a "permission slip" for all manner of evil.

So two questions:

One, if neither the nuns nor their insurer has to provide contraception coverage, what case do they have?

And two, on the secondary point that does regard many other cases, how is signing the statement that one has a religious objection and therefor an exemption a "permission slip"?

Over at Patheos, Rebecca Hamilton, a Catholic and Oklahoma state legislator, compares signing the request to opt out of the mandate to "hiring a hit man to kill your neighbor." Really?

At NCR, Michael Sean Winters calls this kind of argument the "big lie," and he makes the analogy to conscientious objector status. When you sign something saying you don't want to fight in a war, well, someone else has to go in your place. I might add that giving your employees a paycheck is a permission slip knowing that they can then do all manner of evil with the funds.

I have no love for the mandate at all and think it could have been done much differently or not at all. And I have no clue whether the Supremes will buy either the for-profit arguments or the arguments by the Little Sisters or other faith-based organizations when they do reach the high court. (This LA Times piece wonders if the lack of a SCOTUS decision on the injunction reflects a divided court.)

But the arguments being made against the mandate, especially in the case of the Little Sisters of the Poor, seem to be stretching Catholic teaching and legal reasoning beyond the breaking point.


Commenting Guidelines

Jim Jenkins,

My thoughts exactly. From the beginning I have been suspicious that the Beckett people have sought out the Little Sisters of the Poor for their own purpose.

How horrible that these good sisters are having to violate their conscience!!

The problem I see now, is that the regulations are written so that the deal is not off to the side between the TPA and the government, but seems to be triggered by the form the Little Sisters send to the TPA. I think the regulations could be rewritten to work in the way I described in my three points, but there may be some basis for the Sisters complaint until that is done.

But how does the TPA and the government know that the Little Sisters are declining to provide the benefit unless the Sisters notify them?  The "default" expectation is that the Sisters provide the benefit.  Unless/until they decline, wouldn't everyone expect them to do so?  And as soon as they notify the other stakeholders that they'll not provide the benefit - at that point, the TPA and the government can step in, but isn't that notification still the "trigger"?  I guess I'm not seeing a process that doesn't have the sisters 'pulling the trigger'.


Now I'm wondering if this signature thing could have been avoided had the sisters not used a catholic insurer[christian brothers]? How ironic is that[if that's  true.]If that's the case is it that the lawyers were incompetant and did not forsee this or that this is the Rights way of challenging the notion of employer mandated, universal health care!

With regards to Mr. Gibson's second question, "And two, on the secondary point that does regard many other cases, how is signing the statement that one has a religious objection and therefor an exemption a 'permission slip'?"

I think the way to see how the accommodation for non-exempt religious employers involves cooperation in evil is to compare it to a question we might ask if in a similar situation: 'What happens when I sign?' If one does not sign, one is fined: ostensibly because *without* such authorization, the contracted third-party would not begin to offer contraceptive services--what the government prefers. "With" such authorization, that third-party offers contraceptive services (or subsidization of services).

And if we ask what *kind* of act it is (in order to draw relevant moral distinctions like between material and formal cooperation), such authorization it seems is more along the lines of "participating" (formal) than "providing conditions or instruments" (material)--unless we describe the act as "appeasing someone's conscience", which could be construed as a condition for someone to then go on and surreptitiously commit some evil. But "appeasing someone's conscience" is routinely a motive, if not a separate act--not the most formal character of what is being done here. If the act of signing the accommodation is not a participation in the (evil) act of the principal agent, then what is the natural object of the (good) act of the cooperator, that which is being used as a condition or instrument for the principal agent's act?

I find it difficult to describe the cooperator's act as anything else but *permission for another to provide what one would otherwise not provide*. The moral onus is precisely the fact that without *permission*, the act is question (that priorly contracted third party committing an evil) does not occur: someone else may or may not provide the service, but that is outside the moral responsibility of she who would have othersie been the cooperator. With the authorization of the signer, the third party provides contraceptive services and receives reimbursement. Without it, the government arranges on its own some sort of initiative to provide services for the employed--no doubt by some less expensive means.

Helen and Jim J,

Seeking out clients in order to advance a cause may be a common practice. In the 2005 Dover, PA, court case about Intelligent Design, the Thomas More Law Center defended the school board for no charge.  There were suggestions at the time that the law firm had initiated the arrangement.

It is quite possible, for all I know, that firms of all ideological persuasions woo clients in this way. Not all of them, I trust, produce the result that the TMLC got: a crushing defeat, in which the presiding judge declared some of the defendants to be outright liars; and an order for the board to pay the plaintiffs' lawyers $1,000,000 in legal fees.

rose-ellen caminer January 13, 2014 - 9:12am

 “Abortion should be outlawed and contraception is not usually medical care.”

I was with you until this statement.

Until and unless there is a general consensus that abortion is immoral or otherwise, there is no way that it should be “outlawed.”  Failure to persuade is not a reason to outlaw.  The RCC has been singularly unsuccessful in getting the non-RCC world (and a large number of its own female adherents) to avoid abortion.  The more it tries to impose its beliefs (not facts … beliefs) on the rest of the world, the less credibility it has and will have.

Contraception does not enter into my life, but I know that many women use it for purposes other than prevention of birth.  As such it is medical care. 

Viagra is not medical care in the main, but I don’t hear a great hue and cry that it not be covered by a health plan.  Ditto on vasectomies.

The regulatory process was started by the nuns in their hiring of lay people who have a legal and just right to health care

False.  The regulatory process was initiated by the government under the Affordable Care Act.  The employees have NO right to employer provided healthcare.  The government, through a series of carrots - tax exemptions primarily - and sticks - penalties - want the employer to provide a health insurance policy.  But no employer - none - is required to provide health insurance for any employee.

Furthermore, the nuns lawsuit is essentially the civil disobedience you profess to support.

Refusing to cooperate in an action one considers immoral is just that -- *refusal to cooperate in evil*.  How can any refusal to do wrong be immoral?  Can someone give us an example?


The ACA is the law. The nuns initiated their entaglement with the law by becoming employers.That was their choice.The employer is required under penalty of fines to provide health care coverage  for their workers. Whether health care coverage  is a right or not is a philsophical issue. The point is that thanks to the ACA employees are  insured by their employer.An employer cannot pick and choose which laws to obey.Without incuring  a penalty. Yes what the nuns are doing is putting  a hurdle on ths law. That's civil disobedience.If enough people in positons of power agree with them then thy will prevail and the law will change or another accomodation will be provided .We'll see what happens.The nuns are not cooperating with evil if they sign the form, they're afirming their exemption from cooperating with evil.

Abortion should be outlawed because it is the taking of innocent humn law,That is not a relgious only position that recognizes a right to life. it wa once llligal for that reason.

If the nuns were self-insured, in order to comply with ACA, would they need to set up a clinic and perform abortions themselves?

Just kidding - Of course I side with the nuns on this one.

I do not see where condoms, bc pills, or abortions are "treatments" for any medical malady.  They are a means whereby some people seek to avoid responsibility for their own choices and actions, but they are not medical treatments.

In general I think it best if peorple finance their lifestyle choices themselves.

Tom --

The St. Thomas More Law Center was founded by Tom Monaghan, and he's still active in it.  I wouldn't be a bit surprised if he's behind the suit.  

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