The Little Sisters of the Poor are back in court, fighting against Democratic politicians who want to narrow the freedom to exercise one’s religion.
Gov. Josh Shapiro (D-PA) continues to battle the Little Sisters by fighting in court to strike down a religious exemption created by President Donald Trump to the contraception mandate created by Barack Obama in 2011.
There are slightly complicated procedural and legalistic issues involved, but the bigger question is why employer-provided contraception coverage is so important as to require these legal battles to force nuns to violate their own consciences.
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It turns out this fight is so protracted and so intense because it’s a clash of irreconcilable foundational ideas. It’s a religious war.
Religious objections
The first big lawsuit over the contraceptive mandate didn’t involve Catholics or even the pill. It was about the morning-after pills known as Ella and Plan B.
While Plan B was marketed as a way to prevent ovulation and thus prevent pregnancy, its label, as required by the Food and Drug Administration, noted that it may act after fertilization, by preventing the fertilized egg — that is, a tiny human individual — from implanting in the uterine wall.
Ella, the science suggests, acts in the same way. Reproductive Science is the journal of the Society for Gynecologic Investigation. In 2014, the journal published a research paper from five gynecologists who studied Ulipristal Acetate, the active ingredient in Ella.
Their conclusion: “UPA succeeds in preventing the clinical appearance of pregnancies mainly by its negative effects on endometrial receptivity, which is a postfertilization mechanism.”
Again, they said the effectiveness of Ella is likely “due to the described endometrial effects that make the tissue unsuitable for embryo implantation.”
After the contraceptive mandate made Plan B more politically contentious, and as Roe v. Wade was on the chopping block, President Joe Biden’s FDA changed the label recommendation on the drug to remove the information that it may function after fertilization.
Hobby Lobby is a chain of craft stores that is owned by the Green family. They provided their employees with health insurance that covered most birth control, but not these morning-after pills and not IUDs, because these contraceptives were understood to act as abortifacients.
The Religious Freedom Restoration Act, a 1993 bipartisan law, prohibited the government from “substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability.” The Obama administration argued in court that the RFRA applied to the Green family’s business operations. You abandon your freedom to exercise your religion when you enter into commerce, Obama argued, in effect.
The Supreme Court rejected this argument and found that RFRA applied to closely held corporations because compelling the business was in effect compelling the owners to act against their consciences.
Parallel to Hobby Lobby’s case, the Little Sisters of the Poor were suing the Obama administration over the mandate because providing any contraception coverage would violate their consciences.
Marriage, sex, and family formation are inextricably tied in the Catholic understanding of the human person. Artificial contraception severs sex from family formation, reflects a lack of openness to life (and thus love), and interrupts a husband’s and wife’s love for one another. This has always been the teaching of the church, and church leaders have repeatedly reaffirmed it since the introduction of the birth control pill in the 1960s.
Most Catholics do not obey the church’s teaching on contraception, but it is the church’s teaching nonetheless.
Obama exempted houses of worship from this mandate, but for other organizations, he made an accommodation: If they stated a religious objection to providing contraception coverage, they could get out of the mandate by ordering their health insurer to separately provide contraception coverage. In other words, the nuns would still have to make sure their employees got Plan B coverage.
Telling the Little Sisters they must provide their employees with contraception would be like telling a Mormon he must pay employees with whiskey, or telling a pacifist he must arm his employees with AR-15s.
Indeed, to understand the champions of the contraceptive mandate and opponents of the Green family and the nuns, it may be best to understand them as a competing religion.
The secular religion of the Left
Very few employers have asked for a religious or conscience objection to the contraceptive mandate in the decade since Hobby Lobby, or in the years since Trump issued his executive order.
Considering that these employers tend to be orders of nuns and Catholic schools, which mostly employ people who at least understand Catholic teaching, it’s hard to imagine that very many people actually feel put upon by the rare exemptions to this rule — especially considering that birth control is very inexpensive even without insurance.
So, you have to wonder where the passion comes from on the pro-mandate side. Why would Obama fight nuns about this for years? Why would Shapiro keep up the fight more than a decade later?
Artificial contraception, of course, is deeply ingrained in modern America. It’s not just that most sexually active people use or have used birth control; it plays a deep formative role in our culture.
Our increasing individualism, our falling marriage rates, and, of course, our plummeting birth rates are all downstream of the near-universal adoption of the pill.
While for most people, birth control is a prescription or a daily habit, for parts of the secular Left, it is nearly an object of religious devotion.
“Hobby Lobby is angling to deprive women of their religious liberty to use their own health care plans as they see fit,” feminist writer Amanda Marcotte wrote during the Hobby Lobby debate.
If you pay attention, you see this religious language from the pro-choice side when discussing abortion and birth control. “The right to control your own body is sacrosanct,” Sen. Cory Booker (D-NJ) said during his presidential run in 2019, as part of a video touting government-supplied free contraception.
“The right to use contraception established in Griswold was always considered sacrosanct,” writes a Stanford Law professor.
“The rival faith,” Mary Eberstadt writes, “sports foreign ‘missionaries,’ too, in the form of progressive charities and international bureaucracies—those who carry word of the revolution and the pseudo-sacraments of contraception and abortion to women around the planet.”
The roots of this secular religion are easy to see when you look around our culture.
First, individual autonomy has become the one absolute good. As we became more modern and saw ourselves as enlightened, we tossed out traditional moralities. The only moral guardrail remaining was “consent.”
Anything was allowed as long as all parties consented. Thus, autonomy became the north star.
Add to that the near-religious devotion to lifting up historically oppressed groups — specifically women. Female bodily autonomy becomes a super-special-good.
Finally, our careerist, achievement-oriented mindset combines with our belief in planning to make family planning a central organizing principle of modern life.
The result is a worldview in which the birth control pill is elevated to being almost sacramental.
Thus, an employer who won’t cover birth control goes from being an employment-benefits issue to being a religious clash.
