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.

David Gibson is the director of Fordham’s Center on Religion & Culture.

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