Rules Are for Schmucks: Little Sisters of Deceit

Al Gore, who won the popular vote for president in 2000 and who many believe would have taken office but for Supreme Court interference, gets laughs when he tells audiences, “You win some, you lose some. Then there’s that little known third category …”

That “third category” just got a little bigger. By nearly all accounts, the Little Sisters of the Poor just “lost” their case in the Tenth Circuit involving contraceptive coverage under Obamacare and the procedures for avoiding it. This outcome triggered moaning and groaning such as that of the Becket Fund for Religious Liberty attorney Adele Keim who said, “No federal judge should be telling the Little Sisters of the Poor what their faith requires” or of Heritage Foundation attorney Elizabeth Slattery who said that “courts should not be in the business of drawing the lines when it comes to theological questions.” Another Becket Fund lawyer whines, “It is a national embarrassment that the world’s most powerful government insists that…it must crush the Little Sisters’ faith and force them to participate…There is no reason the government cannot run its programs without hijacking the Little Sisters and their health plan.”

But when you read the entire 133-page opinion, what you find is:

1. The law does generally require health insurance plans to cover contraception.

2. The Little Sisters of the Poor do not want their health insurance arrangements to be involved with providing their employees contraception in any way, directly or indirectly.

3. The net result of the court’s decision is that the healthcare arrangements provided by Little Sisters of the Poor for their employees will not cover contraception, directly or indirectly. The Little Sisters of the Poor will not have to complete any form or paperwork that in any way, directly or indirectly, results in the providing of contraception for any of its employees. The only way any employee of the Little Sisters of the Poor will be able to get contraception is by directly paying 100 percent of the cost herself out of pocket, with no involvement of the Little Sisters, any insurance company, any insurance administrator, or the government.

This is a loss?

How can there be a headlines like “Nuns lose latest court battle to avoid contraception mandate” or “Court rules nuns must fund abortifacients/contraception under HHS mandate” when in fact the nuns’ employees will not be getting any contraception? How do the Little Sisters let their own lawyer say that “the government insists that it can take over their ministry’s employee healthcare to distribute these drugs to their employees” when their employees aren’t getting any drugs?

In gorier detail, here’s how the legal ping pong goes. Obamacare (officially, the Affordable Care Act) generally requires health insurance plans to cover contraception (a rule that, so far, is saving women over $1.4 billion a year). Health insurance plans sponsored by “churches” have been exempt from this rule from day one. According to last year’s Hobby Lobby case, for-profit employers with religious objections to contraception are also exempt, but the government hasn’t gotten around yet to publishing detailed rules about how this exemption works. The government has, though, published detailed rules about a “middle” category of employers: nonprofits that are religiously affiliated but are not full-blown churches themselves—including, for example, the Little Sisters of the Poor. According to these rules, which have been modified repeatedly in response to God-industry complaints, all the Little Sisters have to do is fill out and send in a one-page form essentially saying, “We don’t want our healthcare plan to provide contraception,” and presto, they’re off the hook. Going one step further, if they don’t like the wording of the government’s form, they can make up their own.

Sounds easy—except they don’t even want to fill out such a form. That’s because the government has said that when it gets one of these forms, it will then “normally” require the health insurance company (or the third-party administrator, in a self-insured plan like that of the Little Sisters) to provide the contraceptive coverage separately, without any cost to or involvement of the employer. (Buried deep in the court’s opinion is the little factoid that this cost, in the case of self-insured plans, is shifted from the employer to the taxpayers.) Therefore, the Little Sisters argue, filling out the form is a step along the path that results in getting contraception for their employees, which makes them “complicit” in providing contraception.

Except…there is no such path! The third-party administrator the Little Sisters use, explains the court, is run by the Christian Brothers order, which itself is exempt from Obamacare under the exemption for full-blown churches. The court’s opinion couldn’t be any clearer: “It is clear Christian Brothers need not, and will not, provide contraceptive coverage if the Little Sisters opt out of the Mandate.” The Little Sisters cannot possibly be complicit in providing anything, because their employees are not receiving anything. Their whole argument is a sham.

It is true that there are other religiously-affiliated nonprofits, some of which were co-plaintiffs in this case, who do not (yet) use exempt church-sponsored, third-party administrators. The court’s ruling raises a fair question as to whether the law makes these organizations “complicit” in achieving an outcome they say is sinful. But the religious privilege strategists chose to focus attention on the Little Sisters of the Poor, truth be damned. Almost certainly, this is simply because they have such a tear-jerking, headline-grabbing name, compared, for example, to that of their co-plaintiff: Truett-McConnell College, Inc.

The only thing the Little Sisters of the Poor are “complicit” in is deliberate deception, which I always thought was supposed to be a sin.