How Many Nuns Does It Take To Give Women Contraceptives?
A Catholic nun from the Little Sisters of the Poor comforts an elderly resident. Photo courtesy of Becket Law.
(OPINION) On May 6, the Supreme Court heard virtual oral arguments in the case Little Sisters of the Poor v. Commonwealth of Pennsylvania. The Little Sisters of the Poor, a Catholic order of nuns serving the elderly poor, sought a ruling in their favor against states that are trying to strip their religious exemption from the Affordable Care Act’s mandate that employers must cover contraceptives in their health plans.
This case takes up the issue of a Trump administration rule that provides broad exemptions to employers that have a religious or moral objection to providing contraception and abortifacients as part of their health insurance plans. Controversies concerning which kinds of employers are exempt from the contraceptives mandate have been swirling since 2011.
This case can easily be interpreted as the perpetuation of a now well-practiced, though inaccurate, public narrative about religious freedom. This narrative insists that religious freedom ought to appear always in scare quotes— that religious freedom is exercised in this country only to advance the interests of religious groups that have theologically and ideologically conservative beliefs about issues related to sexuality, reproduction and the family. However, this would be an unfortunate misreading of this case. This framing of the issue also presents a false dichotomy between providing women with services they may want and/or need and protecting the religious freedom of organizations providing essential services to some of the most vulnerable among us.
Contraceptive coverage is actually not an either/or problem at all, despite how this issue is often perceived by the public. In 2016, the Obama administration acknowledged, in an earlier stage of this case, that it all along did have available less objectionable ways to provide contraceptive coverage to employees of faith-based organizations. This remains true today. The government can provide robust protections for religious employers so as to not ask them to violate their sacred precepts and it can, if it chooses, provide alternative means for women to access contraceptive services, separate from the health plans of objecting employers.
This is a point worth emphasizing, because religious freedom has for too long been interpreted in public discourse as a weapon against women, rather than a catalyst for preserving the ability of women to serve heroically in their communities, as the Little Sisters are now doing.
It is true that some women believe that they may need access to hormonal contraception to treat a physical condition unrelated to pregnancy prevention. It is also true that, during this pandemic, pregnant women face especially challenging circumstances, including receiving prenatal care through virtual telehealth appointments and giving birth alone without even their partners in the hospital. For some women who have a history of high-risk pregnancies, the possibility of becoming pregnant during COVID-19 raises serious concerns for their own health, the health of their unborn babies, and the impact on their current family caregiving responsibilities. I write from firsthand experience: In the past 18 months, my husband and I have experienced two high-risk pregnancies that included life threatening conditions, including preeclampsia, placental abruption, postpartum hemorrhaging and two babies each born almost two months prematurely.
For many women, including married Christian women like myself, considering a period of contraceptive usage may be a matter of exercising their faith and stewarding the health and resources of their current families. And yet, that does not change the fact that it is not the role of religious employers like the Little Sisters of the Poor, who have their own sincerely held and sacred precepts regarding the sanctity of human life, to provide women with access to contraception services. As Becket Law points out in this NPR article, access to contraceptive care can be obtained through a wide variety of private insurance plans and through government programs focused on this area of women’s health.
This case is especially resonant now because, during COVID-19, the elderly poor are among the most susceptible and the most vulnerable. According to the New York Times, upwards of 143,000 residents and workers in elderly care facilities have contracted COVID-19, and at least 25,600 have passed away. Further, many institutions that provide care for aging Americans are religious. According to The Atlantic’s Emma Green, approximately one-seventh of hospital patients are seen in Catholic healthcare institutions, and “similar proportions of the elderly are cared for in Catholic residential homes.” Many other facilities and services for the elderly are offered by other religious communities.
The Little Sisters of the Poor nuns, who are themselves at heightened risk during this pandemic due to their age, operate close to 30 residential care facilities for the elderly across the U.S. It is worth noting that Catholic nonprofits like the Little Sisters, which directly bridge a gap in the healthcare system by offering services to insolvent patients on Medicaid, face mounting financial vulnerability at this time, even as they serve the most vulnerable in their communities. The mission of this order of nuns emphasizes the “sacredness of human life... especially for those who are the poorest and/or weakest.”
At Little Sisters’ homes in Delaware in March, approximately one-fifth of residents passed away from COVID-19, while many others became ill. In an era when so many are facing their final moments without family members, the Little Sisters’ Christ-centered commitment to seeing the inherent worth of every person, ensures that no one dies alone. As Green noted: “In many ways, the Little Sisters were founded for a moment like this: The nuns take a special vow of hospitality, promising to accompany the elderly as they move toward death.”
It is important now, more than ever, that the Little Sisters and other religious organizations remain free to serve. This case demonstrates that religious freedom provisions are vital if a wide diversity of religious individuals and institutions are to be able, as inspired by their respective religions, to faithfully serve those most in need. Religious freedom is not a means of isolating oneself from uncomfortable situations. In fact, as the Little Sisters demonstrate in their lived service during this pandemic, often religious freedom is the freedom to put your own life at risk for the good of others.
There have been numerous rounds of litigation and iterations of rule-making provisions under both the Obama and the Trump administrations in response to the Affordable Care Act’s requirement, as interpreted in regulations, that female employees must be offered cost-free access to all contraceptives through their employers’ health insurance plans. As the regulations were originally designed by the Department of Health and Human Services (HHS), an exemption was available, but only to a subset of houses of worship. Religious nonprofits were not exempt, even though many objected, on religious grounds, to providing their employees with certain forms of contraceptive and abortifacient coverage through their health insurance plans.
After much heated dispute and many court cases, HHS developed a revised exemption that it claimed was a fair accommodation for these religious employers. However, this workaround required organizations with a religious objection to submit a form declaring their objection either to their insurer or– naming their insurer– to the government. That form automatically triggered the provision onto the insurer of contraceptive coverage to the female employees of the objecting religious nonprofits. This attempted resolution of the controversy was rejected by a number of religious employers who, like the Little Sisters of the Poor, were convinced that their religious principles remained compromised by it.
In 2016, the Little Sisters’ challenge to this attempted resolution made it to the Supreme Court. One Sister explained why this version of the HHS contraceptive mandate still violated her religious conscience: “The religious burden is what that signifies and the fact that the government would... be inserting services that we object into our plan. And it would still carry our name.”
Notwithstanding the workaround, it would still be the Little Sisters’ health plan that would offer contraceptives to the employees, and this offer would have been authorized by the form the Little Sisters signed. On March 29, 2016, the U.S. Supreme Court took the unusual action of requesting additional information from the parties in the case involving the Little Sisters of the Poor and other religious nonprofits. The Court ordered the nonprofits (the petitioners) and also the federal government to file supplemental briefs proposing acceptable alternatives to this latest proposed “accommodation” of dissenting religious organizations.
At the federal level, religious freedom receives strong protection under the Religious Freedom Restoration Act (RFRA), a law adopted nearly unanimously by Congress and signed into law by President Bill Clinton. Under a RFRA analysis, the government’s admission that it could achieve its aim of ensuring wide access to contraceptives without requiring the health plans of religious employers to include contraceptives coverage should have been the end of the case. Once the government admitted there were less restrictive means at its disposal, then the law requires that it employ them.
According to Mark Rienzi, President at the Becket Law: “The Little Sisters said ‘yes’ to the Court’s solution and since the government agrees that there are less restrictive means available, the court should simply rule against [the government] like RFRA plainly requires. The government then remains free to implement the Supreme Court’s solution or some other solution, but either way they should do the logical thing they should have done years ago, which is just go ahead and distribute these [contraceptive] services without nuns.”
Instead, in 2016, the Supreme Court essentially punted and ordered the government and religious nonprofits to attempt to reach a workable solution that neither violated the employers’ sincerely held religious beliefs nor created cumbersome burdens for female employees to access contraceptive coverage. This issue went unresolved until President Donald Trump was elected in early 2017. Under the Trump administration, HHS released new rules regarding contraceptive coverage that provided broad protections for employers, including some for-profit employers, that have religious or moral objections to offering contraceptive or abortifacient coverage as part of their employee health insurance plans. In response, the Commonwealth of Pennsylvania brought suit against the Little Sisters to force them to authorize and provide contraceptives, notwithstanding the expanded exemptions.
As noted by Becket Law, Pennsylvania’s suit is riddled with contradictions. The state’s own health insurance regulations do not have a contraceptive mandate, and its lawsuit fails to identify a single person who will lose their contraceptive coverage if the Trump regulations go into effect. Further, Becket notes: “Pennsylvania admits that it already has and already uses many government programs to provide contraceptives to women who need them. Pennsylvania never challenged the Obama administration for creating much larger exceptions for secular corporations—exceptions that covered tens of millions more people than the religious exemption.”
These expanded Trump exemptions, now being blocked by litigation in the lower courts, are what was before the Supreme Court in oral arguments on May 6. As Becket has consistently argued on behalf of the Little Sisters for the past seven years, the government has other methods at its disposal to effectively provide women with contraceptive access that do not ask religious nonprofits to violate their sincerely held religious beliefs. On January 17, 2020, in response to a request from the Little Sisters of the Poor for intervention, the Supreme Court agreed to review the Third Circuit’s ruling Little Sisters of the Poor v. Commonwealth of Pennsylvania.
“The Court has ruled in the Little Sister’s favor twice before, recognizing what was obvious from the very beginning—that the federal government doesn’t need nuns to help it distribute contraceptives and that forcing them to participate is plainly unconstitutional,” said Mark Rienzi, president of Becket. “We hope that the Supreme Court ends this litigation once and for all.”
Mother Loraine Marie Maguire of the Little Sisters of the Poor stated, “In the midst of the COVID-19 pandemic, when the lives of our residents face a real and imminent threat, we are more eager than ever to be able to care for our residents without being harassed by governments.”
Chelsea Langston Bombino is the director of Sacred Sector, an initiative of the Center for Public Justice. Sacred Sector is a learning community for faith-based organizations and emerging leaders within the faith-based nonprofit sector to integrate and fully embody their sacred missions in every area of organizational life. Chelsea is also a wife to Joshua and a mother to Samuel and Benjamin.