More Trouble for the Little Sisters

For nine years Democratic officials have attempted to force the Little Sisters of the Poor to provide free-of-charge abortion-inducing contraceptives to their employees under Obamacare.

You might have thought that the legal problems of the Sisters, a 180-year-old order of Catholic religious women known for their crisp gray-and-white veils and their mission of caring for the impoverished elderly in more than thirty countries, were long over. But though their struggles seemed to have ended in 2016 and 2017, they are now enduring death by a thousand legal cuts at the state level, enabled by the federal courts and their Obama-appointed judges.

The first part of the Sisters' story is well-known: They and six other Catholic and evangelical nonprofit entities opposed to abortion balked at complying with a Health and Human Services Department (HHS) free-contraceptives mandate for employers contained in the Affordable Care Act of 2010. Four years of virtual intransigence followed, during which the Obama HHS insisted that the only religious entities exempt from the contraceptive mandate were churches ministering to their own members. Then, in 2014, the HHS (along with the Treasury and Labor departments, also charged with enforcing Obamacare) proffered an “accommodation” to the Sisters and others via an interim rule: They could submit a statement of their religious objections to the government, which would then transfer the administration of contraceptive coverage directly to their insurance companies.

This pinch-of-incense compromise, which would have left abortifacient contraceptives as seamless parts of the Sisters’ employee package as though the Sisters had agreed to it in the first place, did not sit well with them. The Catholic Church opposes artificial birth control in general, and most Catholic institutions have historically declined to include such coverage for their employees. One of the Sisters’ arguments had been that the Sisters and other anti-abortion religious groups were being unfairly singled out. The Affordable Care Act had never made the free-contraceptives mandate truly universal in the first place, grandfathering in employers that didn’t cover contraceptives but hadn’t changed their medical coverage since 2010—about 23 percent of all employers nationwide. Small companies with fifty or fewer employees were also exempt. It looked as though the Obama administration, pandering to its abortion-supporting base, had an animus against traditional Christians and orders of Catholic nuns, waving threats of multimillion-dollar fines in their faces for following their consciences in matters pertaining to abortion. Lawyers for the Sisters (in this case the nonprofit Becket Fund) and the other six entities insisted that they had no legal objections per se to Obamacare’s contraceptive-coverage mandate: They simply did not want their clients to be tarred by being forced to have any part in its administration.

In May 2016 the U.S. Supreme Court blocked the Obama administration from trying to impose fines in the range of $70 million on the Sisters. This ruling, in Zubik v. Burwell, was a narrow one that never addressed arguments that applying the mandate to the Little Sisters violated the federal Religious Freedom Restoration Act (RFRA), which allows exemptions from federal laws to those professing “sincerely held” religious beliefs. Yet the high court did agree—unanimously—to bar the federal government from collecting taxes and fines on their noncompliance. All the cases were sent back to the appeals courts for the parties involved to work out a mutually agreeable solution that would ensure contraceptive coverage for the nonprofit entities’ female employees—without requiring that that coverage be part of their employee health plans. Those cases are all still open, and the Supreme Court’s Zubik order still stands.

One of Trump's first actions as president, on May 4, 2017, was an executive order to HHS and the other two agencies to consider issuing amended regulations addressing “conscience-based objections” to Obamacare’s free-contraception mandate. In October 2017 a Trump-administration HHS issued a new interim rule allowing entities with “sincerely held moral convictions” an exemption from the contraceptives mandate, lining up the agency’s policies with the Religious Freedom Restoration Act. That should have meant a happy ending for the Little Sisters, who would now be able to focus their energies on their homes for the aged while their lawyers resolved the remaining Zubik issues.

Not so. The Democrats might have lost the 2016 presidential election, but there were plenty of blue states with Democratic administrations raring to continue harassing the gray-veiled Sisters. Days after the new interim HHS order was issued, five of those progressive-minded states—California, Delaware, Maryland, New York, and Virginia—filed a lawsuit in a federal district court in San Francisco seeking a nationwide injunction against its enforcement on grounds that technical requirements for notice and comment had not been properly followed. The suit was spearheaded by California Attorney General Xavier Becerra, known for his militant litigation against abortion opponents. The San Francisco jurist in charge of Becerra’s forum-shopped case was Haywood S. Gilliam Jr., a 2014 Obama appointee, and Gilliam promptly issued the requested nationwide injunction.

A few days later Pennsylvania Democratic attorney general and frequent Trump critic Josh Shapiro, unwilling to be outdone by Becerra, sued Trump directly along with agency officials over the interim rules in Philadelphia. The Pennsylvania lawsuit alleged a huge range of legal and constitutional problems with the interim rule, including violations of federal pregnancy and employment statutes and the Due Process and Establishment clauses of the U.S. Constitution. The Little Sisters of the Poor, along with the March for Life Education and Defense Fund, have intervened in both lawsuits as obvious targets of the attorney generals’ litigation.

You may wonder how states could have the “standing”—that is, the legal right to sue to challenge—a federal agency’s interpretation of a federal law that involves no state participation in any way. To have standing to sue in federal court, you have to allege a current or reasonably foreseeable concrete injury of some sort from the regulation’s application; you can’t sue simply because you don’t care for the politics behind the regulation or because you might look good to your liberal constituents. After all, California, Pennsylvania, and other states are always free to establish their own contraceptive mandates to be included in health-insurance coverage—which California, Delaware, Maryland, and New York already have.

But to take that point of view would be to underestimate the willingness of liberal federal courts to turn political issues into matters for federal judges to resolve. On December 18, 2018, the Ninth U.S. Circuit Court of Appeals upheld Judge Gilliam’s injunction in Becerra’s California case. Ninth Circuit Judge J. Clifford Wallace’s majority opinion airily gave complete credence to the arguments of California and the other states that the Trump administration regulation “posed a threat to their economic interest” because women denied contraceptive coverage by religious nonprofits might drain their states’ welfare coffers, especially if they conceived and bore unwanted children. The one thing to be said for the Ninth Circuit’s ruling was that it reversed the “nationwide” aspect of Judge Gilliam’s injunction, restricting its scope to the five affected states.

So the Little Sisters' legal battles continue. On January 14, 2019, the Trump administration’s interim rule protecting the Sisters’ “conscience-based objections” to supplying abortifacient contraceptives to their employees expired, to be replaced on January 15 by a permanent regulation to the same effect. That didn’t faze the Democrats. On December 19, 2018, Becerra filed a motion for Judge Gilliam to issue an injunction barring enforcement of the permanent rule—and Gilliam duly complied on January 13. His 45-page opinion held that the Trump administration’s carve-outs for religious and moral objections violated what Gilliam viewed as the clear language of the Affordable Care Act’s contraception mandate. Nor did RFRA, the federal religious-freedom law, require the Trump administration to act, Gilliam wrote, stating that the Obamacare mandate didn’t really impose a “substantial burden” on the Sisters and other religious objectors.

The one thing to be said about Gilliam’s ruling was that he was forced by the Ninth Circuit’s ruling to limit the scope of his injunction to the affected states—although by this time Becerra had rounded up a full twelve other states plus the District of Columbia to join in his challenge. Meanwhile, some twenty-one states with Democratic attorneys general had joined Shapiro’s Pennsylvania suit. And on January 14, the very day before the Trump-administration permanent rule was scheduled to go into effect, U.S. District Judge Wendy Beetlestone, another Obama appointee, issued an injunction barring its enforcement. Furthermore, because her Philadelphia court wasn’t bound by the Ninth Circuit’s ruling, Beetlestone made her injunction nationwide.

The Becket Fund plans to appeal both injunctions, and it’s likely that soon enough the Little Sisters of the Poor will be trudging back to the Supreme Court to try to get their plea for religious freedom vindicated after still more years of litigation. It appears that as long as there are Democrats, there will be tormentors for this unassuming order of Catholic women who want only to live by their moral beliefs and to care for some of the most frail and vulnerable among us.

Charlotte Allen is a writer living in Washington, D.C.

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