Published January 24, 2014
Today, and every day since December 31, the Little Sisters of the Poor have prayed that the Supreme Court would save them from the choice of violating their faith or exposing their ministry to decimation by IRS penalties. Today their prayers were answered. The Little Sisters of the Poor received an injunction from the Supreme Court protecting them from the U.S. Department of Health and Human Services’ (HHS) controversial mandate while they have their day in court.
The Little Sisters are a 175-year-old order of Catholic nuns dedicated to providing “the neediest elderly of every race and religion a home where they will be welcomed as Christ.” For more than a year, they have been telling HHS that their deep commitment to the culture of life prevents them from participating in HHS’ scheme to provide their employees with contraceptives. They told HHS that it was unfair that churches were exempt from the mandate, while the Little Sisters were not. They told HHS that the “accommodation” was just a shell game, because their benefits administrator would still be using their plan information to deliver contraceptives to their employees. And they told HHS that they absolutely would not sign and deliver the government’s official two-page form that would set the whole scheme in motion by authorizing their benefits administrator to deliver the drugs.
HHS ignored the Little Sisters until October, when they came into court with their Catholic benefits provider, Christian Brothers, representing a class of over 400 Catholic organizations that also object to the mandate.
Then the government took notice. It had a sudden revelation that its rules didn't apply to “church health plans” like Christian Brothers. And it claimed (even though its regulations said otherwise) that any benefits administrator who received the form from the Little Sisters wouldn’t have to provide the drugs if it didn’t want to. But it still told the Little Sisters to sign the form – or else.
The Little Sisters pointed out that the form instructed their benefits administrator to do something the Little Sisters didn’t believe in – pay for their employees' contraceptives. And they pointed out that the government still wanted their benefits administrators to provide the drugs, and was still offering to pay their benefits administrators to do so. But the government told the Little Sisters “it’s just a form.” And the government told the Little Sisters to sign it – or else.
The “or else” was massive fines—up to millions of dollars a year—slated to begin at 12:01am on January 1, 2014. On New Years’ Eve, Justice Sonia Sotomayor gave the Little Sisters temporary protection while the Supreme Court considered their emergency appeal.
Today the Little Sisters received a more lasting kind of relief, in the form of a Supreme Court order that will protect them from the HHS mandate while their case is considered carefully by the Tenth Circuit Court of Appeals in Denver. As of today, courts have issued similar orders in 18 out of 19 decided cases brought by religious non-profits.
The Supreme Court’s latest ruling came from the entire court, not just one Justice. And in that order, not one Justice said she disagreed. The Court said that all the Little Sisters have to do is tell HHS, in writing, that they are a religious non-profit with religious objections to the mandate. The Little Sisters are happy to do that—they’ve already been telling HHS the same thing for over a year.
More important than what the Court asked the Little Sisters to do is what the Court said the Little Sisters did not have to do. The Court said that the Little Sisters do not have to use the government’s form, or deliver a copy to their benefits administrator.
In other words, it’s not “just a form.” And so long as the Little Sisters are having their day in court, the government has to treat the Little Sisters—and the four hundred other Catholic non-profits that receive benefits through Christian Brothers—the same way it treats churches: as deeply religious organizations entitled to a complete exemption from the mandate.
Adele Keim is Legal Counsel for the Becket Fund for Religious Liberty who is representing the Little Sisters of the Poor in this matter.