Tag Archives: Little Sisters of the Poor

Birth Control And Health Care

If the pandemic has taught Americans anything, it is just how inadequate–and let’s be honest, discriminatory and stupid–our healthcare system is. (Actually, every time I write “healthcare system” I am reminded of the student who was studying to be a hospital administrator, who told me the phrase was inaccurate–“We don’t have a healthcare system. We have a healthcare industry.”)

A few days ago, the Supreme Court handed down an indefensible decision that denied women healthcare if they are unlucky enough to have an employer who has “religious qualms” about allowing their health insurance to include birth control.  Gail Collins provided a perfect analogy:

Let’s pretend there was an order of nuns with a particular devotion to the Sacred Heart of Jesus. So much so that the order had, over the years, decided that any human heart was a holy symbol, and it was immoral to mess with it, even if you were a physician doing cardiac surgery.

Following their consciences, these nuns banned heart-related care from their employees’ health policies. That affected thousands of workers, many of whom did not share their religious convictions. Still, the nuns noted, their insurance coverage was generous. Except for that one thing.

The Court affirmed the right of employers to omit birth control coverage from their group health policies. But that “right” is misleading.  The Obama administration had arranged for the federal government to intervene when religious employers had ethical objections. All the employer had to do was file a form, and they’d be off the hook; the government and the health insurance companies would provide the coverage. The employer wouldn’t need to spend a penny on a sinful women’s health measure.

But that wasn’t good enough. Filing a form would make them complicit. Trump, of course, pandered to the “religious” employers who placed their purported moral purity above the actual health and well-being of their female employees, and the Court acquiesced.

An  estimated 70,000 to 126,000 women will lose their current free contraceptive coverage–and contraception isn’t cheap. As the Times Editorial Board wrote, 

It bears reminding that the cost of birth control can be significant, and that many women rely on it not just to prevent pregnancy but to treat medical issues. Sometimes, the contraceptive method that works best — or the only one a person can tolerate — costs many hundreds of dollars without insurance coverage.

As the Editorial Board also noted,

It’s hard to imagine the conservative justices of this court, especially, allowing employers to claim a moral exemption and require their employees to pay out of pocket for, say, a treatment for Covid-19. That sounds absurd. And yet, when it comes to birth control, such state interference with personal health decisions is considered a legitimate matter for public debate.

The health care industry in this country is the real “American Exceptionalism.”

America could solve conflicts like this one–not to mention racial and economic inequities in access to health care–by emulating other advanced, civilized nations and moving to a single-payer system of health insurance. Not only would such a move eliminate the ability of some Americans to impose their religious convictions on others, not only would it ameliorate a number of racial and economic inequities, not only would it vastly reduce personal stress and the country’s high rate of personal bankruptcies, it would introduce cost-controls to a system that costs far more and delivers far poorer results than others.

How much of our stubborn refusal to provide universal health insurance is due to inertia, to misunderstanding of how markets work or don’t, or a false belief in American superiority–and how much of it is due to a shameful reluctance to extend the social safety net to “others”–minorities and women?

Frame Me A Story

When I think about what I learned in law school all those years ago, it really boils down to one truism: he who frames the issue wins the debate.

Okay, that might be a wee bit of overstatement, but a recent column by Linda Greenhouse— one of the most savvy reporters covering the Supreme Court–reminded me just how important framing is, not just in litigation but also in politics.

Greenhouse was writing about two “religious liberty” cases on the Court’s docket this term. As she noted, these cases involve a constitutional gray area; we know that the  Free Exercise Clause requires government to give religious believers room to practice their faith without undue interference. Courts must decide how much room, under what circumstances, and what interference is “undue.”

The cases the Justices must decide this term–Little Sisters of the Poor v. Pennsylvania and Our Lady of Guadalupe School v. Morrissey-Berru— both lend themselves to what Greenhouse calls “alternative narrative” packaging. Religious organizations have been in court ever since the Affordable Care Act was passed, protesting the Act’s requirement that health insurers cover contraception for employees that want it.

Which gets us to posturing. Despite Little Sisters’ name on one of the lawsuits, it has virtually no interest in the decision.

That’s because the order’s lay employees, not all of whom are Catholic, are covered by a church-sponsored insurer, the Christian Brothers Trust, which the government conceded in earlier litigation can’t be penalized for its refusal to provide the disputed contraception coverage.

In other words, the Little Sisters have already won. The actual dispute before the court is between Pennsylvania and New Jersey, on one side, and the Trump administration on the other. The states sued to block the administration’s rule that lifts the contraception mandate entirely from any employer — profit, nonprofit, privately held or publicly traded — with a religious objection to covering birth control, as well as from any privately held employer that claims a “moral” objection.

The actual issue raised by the states is whether the Trump administration complied with the Administrative Procedure Act when it issued the rules.

But that hardly comes through from headlines like “The Endless War on the Little Sisters of the Poor” on a Wall Street Journal op-ed by Helen Alvaré….. And Ramesh Ponnuru’s Bloomberg opinion column declaring that “The Left Is at War With the Little Sisters of the Poor” concluded by demanding, “Leave the nuns alone.”

Talk about a compelling story line. Except that it isn’t accurate, not by a long shot. On the table when the Obama administration left office was a proposed accommodation under which religious nonprofits would not have to do anything — hands off, completely, nothing to sign, no forms to fill out — to have the insurer, with reimbursement by the government, provide “seamless” contraception coverage. That was the Obama administration’s one nonnegotiable requirement. (The administration didn’t want women to have to shop for a stand-alone birth-control insurance policy.)

In other words, the nuns and all other religious employers, were not being asked to “pay for birth control,” far from it, and would have been untouched by the bureaucratic hand. But that still wasn’t sufficient, the religious employers said, to avoid their complicity in the sin of contraception because their insurance policy would still provide the link, however attenuated, between their female employees and contraception.

The court’s second religion case involves the “ministerial exception,” a doctrine that exempts churches from having to follow federal nondiscrimination laws when it comes to employees whose jobs are essentially religious. (As I tell my students, that means that a synagogue can’t be required to hire a Baptist as Rabbi, or a Baptist Church compelled to employ an atheist Sunday school teacher.)

Two Catholic schools in California dismissed fifth-grade teachers, each of whom taught fifth-grade subjects– including, twice a week, a class taught from a religious workbook. One was fired after she developed breast cancer and needed time off for treatment, who sued under the Americans With Disabilities Act. The other woman alleged age discrimination.

Both schools claim that the ministerial exception applies, and federal anti-discrimination laws don’t.

During last week’s argument, the justices and lawyers jousted over hypothetical questions: Would the exception apply to a janitor? To a football coach? To a football coach who led the team in prayer? An employee at a soup kitchen who leads grace before meals?

The case is being framed as the right of religious schools to select religion teachers. The actual issue is whether a teacher who teaches religion for two hours a week, along with math, social studies, English and everything else, is a “religion teacher.”

Here’s the real question raised by both of these cases: do Americans employed by religious employers forfeit their Constitutional rights?

Would framing these cases accurately win the debate?