I confess.
I am confused by recent newspaper reports about the Little Sisters of the Poor and their lawsuit against contraception coverage under the Affordable Care Act. I decided I needed to pay more attention to understand the grave constitutional issues that seemed to be involved.
So I went to the opinions and the briefs and memos. After reading them, I am not as confused.
I am astonished.
Parties have filed one of many lawsuits because they want to enforce their asserted constitutional right to practice a religion that professes the strong belief that conception is a moral wrong. But they will never have to provide conception coverage to their employees. But their group health plan administrator cannot be required to provide contraception coverage, either. Yet, they all assert that their constitutional rights are being denied, somehow.
Let's begin at the beginning. The Little Sisters of the Poor Home for the Aged is a nonprofit corporation in Colorado which runs a nursing home. The Little Sisters of the Poor, Baltimore, Inc., is a Maryland nonprofit corporation which also runs a nursing home. Each corporation is an "employer" for purposes of the ACA or "Obamacare" law.
The Little Sisters corporations together filed a lawsuit in Federal Court in Colorado against the ACA. Specifically, both employers seek to overturn the preventive services Regulations mandated by the ACA, at least to the extent that the Regs require contraceptive coverage to be offered in the case of the ordinary employer.
The Little Sisters corporations contend that they are not ordinary employers but that their rights are violated by the Act and by the Regs anyway. To distill the legal arguments out of their complexity, the Little Sisters corporations do not have to pay for or otherwise provide coverage for contraception in their group health plans for their employees. However, they would as an alternative have to provide a "self-certificate" that they are religious organizations and that they object to a certain provision of the Act on religious grounds, or in this case, that they object to a certain provision of the Regs on religious grounds.
If they provide that self-certificate to their third-party administrator for their self-insured group health plan, then supposedly the administrator of their plan would be required by other laws to provide or arrange for payment of contraception coverage. This requirement is not imposed on the Little Sisters and it is not imposed by the Affordable Care Act. This requirement is imposed on the health plan administrator, however, if the Little Sisters provide a "self-certificate," and further, the requirement is imposed as a result of a separate law, ERISA or the Employee Retirement Income Security Act.
However, in the case of the Little Sisters corporations, their administrator is not subject to ERISA. Their self-insured group health plan is with the Christian Brothers Employee Benefit Trust. Their administrator is another Catholic religious organization which does not arrange for contraception coverage and never has, the Christian Brothers Services.
And it does not have to. To say again, the Trust is not subject to ERISA and so the administrator is not required to provide contraception coverage. The Federal Government admits that it has no power to require the Little Sisters corporations to place their plan with an administrator which is subject to ERISA and thus to the requirement that the administrator provide contraception coverage or arrange for payment of contraception coverage.
So, the 16 counts of the Little Sisters' complaint against contraception coverage come down to this: If they comply with the law, then they will be participating in a legal scheme which they do not condone. In other words, they do not like the law, even though it requires nothing more from them than a "self-certificate" which has no effect. With all due respect, that argument is not worthy of the Little Sisters.
Second, leave it to judges and other lawyers not to mention the fact that the two Little Sisters corporations run nursing homes. And they are talking about their fears of providing contraception coverage? I remember a time when the main concern of organizations like Little Sisters of the Poor would be the poor.
Parenthetically, this point is illustrated by a declaration prepared for one of the Little Sisters that asserts her opposition to "post-conception contraception". I have never met a nun who speaks like that. The nuns I know would sooner stand you up in the front of the classroom and let everyone know what a stupid thing you just said if they caught you saying that. This declaration is supposed to be evidence of an opposition to preventing conception after a woman has conceived, is it?
The District Court decision is published as Little Sisters of the Poor Home for the Aged, etc., et al v. Sebelius, etc., et al, 2013 WL 6389900 (D. Colo. December 27, 2013). The declaration of opposition to "post-conception contraception" is at page *8 thereof. Justice Sotomayor's temporary stay on New Year's Eve of the District Judge's ruling of constitutionality, after the Tenth Circuit refused a stay, is found at 2013 WL 6869391. Representative newspaper reports are found at Robert Pear, "Justices Are Asked to Reject Nuns' Challenge to Health Law / Order Objects to a Requirement That It 'Opt Out'" p. A9, col. 4 (New York Times Nat'l ed., Saturday, January 4, 2014); and Adam Liptak, "News Analysis / Health Law Challenge Opens Up New Front" p. A7, col. 5 (New York Times Nat'l ed., Thursday, January 2, 2014).
Postscript on Wednesday, January 8, 2014:
The Editorial Board of the Los Angeles Times agrees. The objection argued on behalf of the Little Sisters of the Poor is "hard to fathom". The Times Editorial Board goes even further in their recent editiorial on this case. Even if the Little Sisters of the Poor "was using a non-religious insurer, and even if the insurer provided the [contraception] coverage" -- and in this case, in reality, the Little Sisters are using a "religious insurer" which does not have to provide the contraception coverage -- "[t]hat others might ultimately pay for the coverage isn't the charity's business." Editorial, "The Little Sisters of the Poor vs. Obamacare / The Roman Catholic Nuns' Challenge to the Contraceptive Coverage Mandate of the Affordable Care Act is Hard to Fathom" (Los Angeles Times Online, posted Tuesday, January 7, 2014).
© 2014 by Dennis J. Wall. All rights reserved. No claim to original U.S. Government works.