You may have seen some pretty alarmed headlines about the Little Sisters of the Poor case. The Atlantic said “Even Nuns Aren’t Exempt From Obamacare’s Birth-Control Mandate.” Ted Cruz put it a bit more dramatically: “Right now the federal government is suing the Little Sisters of the Poor to try to force Catholic nuns to pay for abortion-inducing drugs.”
That sounds pretty bad, right? Surely if anyone should be exempt from covering birth control it’s nuns – after all, it’s not like they have reason to use it.* So what’s going on?
First, who are the Little Sisters of the Poor?
The Little Sisters are an order of Catholic nuns who manage nursing homes. None of the reporting I’ve read on the topic mentions that these nursing homes employ non-nuns, who are not necessarily Catholic and whose health insurance is provided through the Little Sisters.
As an organization that provides a service (nursing homes), the Little Sisters are considered a religious non-profit – more like a Catholic college than a Catholic church.
What happened in court?
The Little Sisters were given the same religious exemption as other religious non-profits and for-profit companies like Hobby Lobby: They can send a form or letter to the government stating their objection to birth control, and the government will work with their insurance company to provide that coverage separately, at no cost to them.
They say that this isn’t an acceptable compromise: Even filling out the form makes them morally complicit in providing birth control.
Yesterday, the Tenth Circuit Court of Appeals rejected that argument. It concluded that filling out a form is not a “substantial burden” on the Sisters’ religious exercise. They’re required to inform the government of their objection so their employees can receive birth control coverage. The Seventh Circuit and D.C. Circuit courts have come to similar conclusions in cases with Christian colleges and charities.
To be absolutely clear: No one is forcing the nuns to buy birth control. The court is forcing the nuns to sign a form allowing someone else to buy birth control for their non-nun employees.
Why did the Little Sisters bring this case in the first place?
In an interview, Sister Constance Carolyn of the Little Sisters made an interesting point:
“More than a few people who contacted us about our lawsuit have asked us something like this: ‘You are celibates and you take care of the elderly, so obviously contraception has nothing to do with you; why have you taken on this issue?”
Why indeed? It might even be a non-issue: They’re insured through a Christian insurance firm that isn’t legally obliged to cover birth control. She goes on to say:
“As Little Sisters of the Poor we vow to devote our lives specifically to the service of the elderly poor, but the unborn are no less worthy of reverence and protection than the frail seniors we serve every day.”
So the Little Sisters are less concerned about themselves (or their patients) using birth control and more concerned with making a point about their beliefs about the sanctity of life.
And they have some high-profile help: Their case is being made by the Beckett Fund, which probably agreed to take it because the Little Sisters are highly sympathetic plaintiffs. It’s hard to argue with nuns when they say something is immoral, even if they aren’t not seriously harmed by the ACA accommodation and might not even have to offer birth control coverage no matter what. They might not like it, but signing the form doesn’t make a serious difference to their ability to follow their vocation.
What’s the takeaway here?
This is the third circuit court to give its stamp of approval to the administration’s compromise for religious organizations, which is bad news for religious organizations that really don’t want to sign that form.
But when you read all the coverage of this case, the thing to keep in mind is this: No one is making nuns take birth control or even pay for it. This is about enabling insurance companies to make sure that the non-nun staff at the nuns’ nursing homes have coverage for whatever birth control they might need.
That doesn’t work at as a headline, but it’s really important to keep in mind when people start scaremongering about threats to religious freedom.
* Actually, there are several non-contraceptive reasons to use birth control, such as period regulation, which nuns might benefit from as much as anyone. The Catholic Church might still frown on that, though.