The Little Sisters and Legal Speak

In a CNN Opinion Column, Sally Kohn has called the Little Sister of the Poor’s suit against the HHS Mandate “far-fetched” because they refuse to sign a form stating their religious exemption. She claims:

Here’s the thing: No one is saying that the Little Sisters of the Poor should have to pay for contraception for their employees. There’s an exemption under Obamacare. For which the nuns qualify. If only they would sign the form.

In other words, the law already works for groups like the Little Sisters. They don’t want to fund contraception coverage and, under Obamacare, they don’t have to.

District court judge Lee Rosenthal quoted by Sr. Mary Ann Walsh in US News and World Report, explains:

“The act of self-certification does more than simply state the organization’s religious objection,” the judge said. The form also tells a third party that “it must provide the organization’s employees coverage that gives those employees free access” to the problematic devices and products, and that “it must notify the employees of that benefit.” He concluded that “the purpose and effect of the form is to accomplish what the organization finds religiously forbidden and protests.”

Professor Kevin Walsh from the University of Richmond School of Law rebuts the government’s Supreme Court response, which has left reporters, commentators, and their subsequent audiences misinformed:

To be clear: the Little Sisters’ case exists only because their homes are nonexempt organizations under the current regulations. The government has offered what it calls an accommodation. But a key legal feature of this accommodation is that it offers nonexempt organizations an alternative path for compliance rather than an avenue for exemption. This is plain on the pages of the Federal Register, in which the government explains that “an eligible organization is considered to comply with [the ACA’s preventative services for women provision] and the companion provisions in ERISA and the Code if it provides to all third party administrators with which it or its plan has contracted a copy of its self-certification.” Nonexempt organizations who avail themselves of the accommodation remain nonexempt, but they are no longer subject to penalties because they have complied to the government’s satisfaction. . . .

The distinction between exempt and nonexempt but accommodated employers is not merely semantic. The express purpose of distinguishing the two has been to ensure that employees of the accommodated but nonexempt employers (in contrast with employees of exempt employers) receive the required contraceptive coverage in connection with their employers’ plans. The government declined to extend the religious employer exemption to groups like the Little Sisters of the Poor, but instead created an alternative path to compliance, because it wanted its rules for these organizations to serve “two important policy goals.” 78 Fed. Reg. 39, 872. Only one was religious accommodation. The other was to “provide access to contraceptive coverage without cost sharing.” Id.

The injustice of Kohn’s misleading piece is compounded by a fundamental misunderstanding of the conscience by which the Sisters must act, a conscience formed by their Catholic faith and the example of their foundress, St. Jeanne Jugan. I suggest reading Timothy George’s column from today to receive a more proper understanding of the Sisters’ conscience, formed by the Gospel and by their unique apostolate of caring solely for the elderly poor.