Joe Biden’s statement Wednesday on the Little Sisters of the Poor Supreme Court case marked the vanishing space for religious liberty among Democrats.
The former vice president, who up to then had remained relatively silent on the issue, a yearslong battle over whether or not the Catholic order of nuns would have to offer contraception in its healthcare plans, confirmed what many of his critics had long suspected. If elected, Biden essentially promised to undo the Supreme Court’s protections for the Little Sisters by rolling back President Trump’s exemptions from the contraception mandate.
“Healthcare is a right that should not be dependent on race, gender, income, or ZIP code,” Biden said, adding that the Little Sisters’s successful ploy for a conscious-based exception was “disappointing.”
Biden’s statement was the latest instance of him lurching leftward to define himself against his opponents. In the past year, Biden has changed or clarified a series of his policy stances. With regard to social issues, his most notable flip has been his view of the Hyde Amendment, which bars the federal government from funding most abortions. Biden used to support it, but after pressure from the left wing of his party, in June 2019, he declared, “Folks, times have changed.”
Biden’s history with the Little Sisters is murkier. While President Barack Obama’s vice president, Biden, who is a vocal Catholic, did not speak on the issue publicly, either in favor or against the Little Sisters, who in 2013 sued the administration for including the group in the contraception mandate. But, previous to the contraception mandate’s implementation into the Affordable Care Act in 2012, Biden, along with then-White House chief of staff Bill Daley, attempted to block the inclusion of the mandate, fearing it would hurt Obama’s 2012 chances. They were overruled by then-Health and Human Services Secretary Kathleen Sebelius.
While campaigning in 2012, Biden often brought up the administration’s narrow exemption for churches, in an effort to show that the Obama administration was broad-minded in its approach to contraception and religious liberty. In an October debate with then-vice presidential candidate Paul Ryan, Biden exaggerated the scope of the mandate’s exemptions.
“With regard to the assault on the Catholic Church, let me make it absolutely clear: No religious institution, Catholic or otherwise — including Catholic Social Services, Georgetown Hospital, Mercy, any hospital — none has to either refer contraception, none has to pay for contraception, none has to be a vehicle to get contraception in any insurance policy they provide,” Biden said. “That is a fact.”
Ryan pointed out that religious conservatives’ dissatisfaction with exceptions indicated otherwise.
“If they agree with you, why would they keep suing you?” he asked in reference to a growing number of religious liberty cases.
In part because of the administration’s deflective stance on the issue, when the Little Sisters joined the fray, the case became a cause célèbre for conservatives, who framed the battle as a fight between god-fearing nuns and a secular administration.
“Does any Democrat have the courage to stand up and speak for the Little Sisters of the Poor?” Texas Sen. Ted Cruz demanded in a 2014 speech on the Senate floor targeted at Catholic Democrats, then-House Minority Leader Nancy Pelosi and Biden among them.
Biden faced heat from Pope Francis for his implicit stance on the Little Sisters in September 2015 when Francis visited Washington, D.C., to beatify the Spanish priest Junipero Serra. Before meeting with Obama, Biden, and other White House officials, Francis made a stop to see the nuns. A Vatican spokesman later confirmed that Francis had planned his itinerary this way to signal to lawmakers his support for the nuns’ case for religious liberty.
Republicans in 2016 replicated the pope’s stunt by using the Little Sisters at Obama’s State of the Union speech to make a point about religious liberty. Speaker of the House Ryan brought two nuns from the order as guests. The practice of bringing guests to the State of Union, started by President Ronald Reagan, is a common way for congressional members to boost their pet political causes.
Before Obama, flanked by Biden, spoke, Ryan, who is also Catholic, introduced the sisters to various members of Congress and explained their cause. The group in a statement said that its presence at the event was not intended to be a political statement but to make clear to lawmakers that its primary mission is aiding the elderly and sick.
“All we ask is that our rights not be taken away,” Sister Loraine Marie Maguire said before the event. “The government exempts large corporations, small businesses, and other religious ministries from what they are imposing on us — we just want to keep serving the elderly poor as we have always done for 175 years.”
When Trump took office and issued the 2017 executive order (followed by a 2018 Health and Human Services policy) that kicked off the last Little Sisters Supreme Court case, the administration often framed its own favor to the order as a correction to the Obama-Biden legacy.
Trump often mentions the Little Sisters as an applause line in his speeches to religious groups, most recently at the 2020 March for Life. Advisers to the Trump campaign said that his mentions of the group recall for many Biden’s connection to the nuns’ original lawsuit.
In a June campaign speech in Wisconsin assaulting Biden’s ties to Obama’s legacy, Vice President Mike Pence highlighted the Trump administration’s efforts to roll back Obama-era regulations on religious freedom.
“This president and our administration, from day one, in one instance after another, have been defending that freedom and defending those values every step of the way,” Pence said. “I mean, from early on in this administration, the president took steps. He took steps to end the last administration’s assault on the Little Sisters of the Poor.”
When the decision was handed down on Wednesday, the administration claimed it as a major win against the former administration’s legacy on religious liberty. White House press secretary Kayleigh McEnany says that the Trump administration has the “courage of our convictions” to protect organizations such as the Little Sisters.
The polarity between the Trump administration’s vocal defense of the order and Biden’s now firm stance against its exemptions has left little room for Democrats to support religious liberty. Following Biden’s lead, many Democrats denounced the Supreme Court’s decision, including Pelosi, who called the ruling “unconscionable” and committed to fighting the exceptions.
But the clear battle lines have convinced many religious liberty advocates that, although the nuns may find themselves back in court, their high profile and now deeply entrenched partisans will likely give them another win.
“At this point, it’s getting ridiculous for someone to file suit again or find some other way to legally harass the Little Sisters of the Poor,” said Maureen Ferguson, a senior fellow at the Catholic Association.
John Bursch, senior counsel at the Alliance Defending Freedom, a legal nonprofit group that specializes in First Amendment cases, said that the win, the second of several for the order, showed that no matter who is president, the court is likely to continue affirming exceptions for the nuns.
“The government has no business forcing pro-life and religious organizations to provide drugs and devices that can destroy life, regardless of the administration,” he said. “The First Amendment requires that all organizations, religious or otherwise, should be free to operate in accordance with their deeply held religious beliefs. Everyone should respect that.”
