In the latest in the Department of Health and Human Services contraceptive mandate saga, the Supreme Court granted an injunction protecting the Little Sisters of the Poor from the heavy fines and impositions of the provision.
The Little Sisters of the Poor is an order of Catholic nuns that runs homes for the elderly poor. They object to providing contraceptives, abortifacients and sterilizations in their health benefits packages — not exactly surprising, considering they are, well, Catholic nuns.
The court's injunction is a welcome relief for the nuns, who would otherwise be subjected to onerous fines in return for simply sticking to their beliefs. It is also a profound rebuke to the Obama administration. Kathleen Sebelius, HHS, and the Department of Justice have been fighting the Little Sisters tooth and nail up to this point, but the court has given a first round victory to the nuns.
This case has garnered significant media attention, in particular because the Little Sisters object not only to the mandate itself, but also to the “provision” they were given to “opt out.” The Obama administration claims the Little Sisters could easily decline offering coverage if they would only sign a form that stated their religious objections. This is both deceptive and deeply cynical. The form is not a simple “we object,” but is, in fact, the administrative tool that authorizes the benefits provider itself to provide the objectionable drugs and services. As the Little Sisters told the U.S. Commission on Civil Rights just a few months ago, this would make the nuns complicit in providing drugs that violate their core beliefs.
Still, the government, with Soviet-style persistence, would not back down. The Little Sisters would sign or, God help them, pay the price. Represented by the Becket Fund for Religious Liberty, the Little Sisters appealed to the Supreme Court. Interestingly, the administration then hastily claimed in their brief that the form was actually meaningless, so the court didn't need to worry about the case.
As Mark Rienzi, senior counsel for the Becket Fund, said: “But why on earth would the government be fighting the Little Sisters all the way to the Supreme Court if it did not think its own form had any effect?”
The whole situation reveals the administration’s mulish determination to achieve an agenda-driven goal. And that goal is becoming clearer and clearer. It’s not simply about making contraceptives available, which the government could do in many other ways. It’s about forcing those who object to adopt, or at least submit to, the administration’s ideology — or suffer the consequences.
The administration has plenty of friends willing to spread the word that the nuns' position is null, or so extreme that it should be disregarded. As Cecile Richards, president of Planned Parenthood, said in a press release: “This is a case about paperwork, not religious liberty.”
Others have either misunderstood or misrepresented the Little Sisters' theological stance. Dahlia Lithwick of Slate.com asserted, "The Little Sisters' argument means that so long as any employee obtains contraception in any fashion, the sin is done.” (For the record, this is incorrect.) And Malcolm Potts wrote in the Los Angeles Times that “[t]he nuns' action highlights the misunderstandings and theological errors behind the Vatican's condemnation of what it terms artificial contraception.' ”
These attitudes demonstrate serious ignorance of the Catholic faith. Richards simply sweeps the nuns’ claims to the side. Lithwick falsely extrapolates them to mean something they don’t. And Potts’ bold statement that the Vatican has “theologically erred” when it comes to contraception is, to be polite, grossly misleading.
Although faithful Catholics will recognize that Potts’ assessment does nothing to change the seriousness of the Church’s stance, non-Catholics might interpret it as an invalidation of Church teaching and an invalidation of the nuns’ claims.
But more importantly, these attitudes demonstrate an equally deep ignorance of the Constitution. The point that the administration, the media and some in the general public seem to be missing is that the Constitution does not ask them to understand and affirm the theology behind the nuns' beliefs. The First Amendment protects religious expression, regardless of whether or not the government or popular opinion agrees. To ask what the nuns believe is one thing. To weigh in on whether it's a theologically valid belief, or serious enough to merit protection, is wholly inappropriate as a matter of law.
The nuns object to providing contraception and to deputizing someone else to do the same. That’s enough, according to our nation’s founding principles. It’s time for the Obama administration to start respecting them.
Peter Kirsanow, an attorney, is a member of the U.S. Commission on Civil Rights. These comments do not necessarily reflect the position of the commission.
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