Anyone scanning the headlines about the federal appeals court’s rejection of the Little Sisters of the Poor’s challenge to the Affordable Care Act’s contraceptive mandate could be forgiven for thinking that the Little Sisters lost:
Denver’s Little Sisters of the Poor Loses Contraception Coverage Ruling
Little Sisters of the Poor Lose Case Against Birth Control Mandate
Denver Court Rules Against Little Sisters of the Poor in Contraception Coverage Case
But nothing could be further from the truth. The Little Sisters of the Poor, or more precisely, the Becket Fund, the conservative public interest law firm representing the Sisters, have won Big Time. Becket has successfully turned a previously obscure order of elderly nuns into the poster children for rapacious violations of “religious liberty” by the Obama administration and its progressive allies.
As evidence of the degree to which the Little Sisters meme has penetrated the conservative consciousness, one need look no further than the Republican presidential candidates. When Jeb Bush needed to firm up his religious freedom bona fides with the right, he called out the Obama administration for its “shabby treatment of the Little Sisters of the Poor” as the “most galling example” of incursions into religious liberty. “It comes down to a choice between the Little Sisters and Big Brother, and I’m going with the Sisters,” said Bush when he announced his candidacy to an audience of Evangelicals at Liberty University.
Likewise, Ted Cruz ginned up the audience at last year’s Value Voters Summit by telling them that “the federal government is suing the Little Sisters of the Poor to try to force Catholic nuns to pay for abortion-inducing drugs.” He dared Hillary Clinton to debate the nuns, adding, “I’ll stand with the nuns.”
On Fox News and other right-wing media, “forcing nuns to provide abortion-inducing drugs” has become shorthand both for violations of religious liberty and government overreach in general. Before he was a GOP candidate, Mike Huckabee regularly referred to the persecution of the Little Sisters on his Fox show as one of the signs of the coming religious liberty apocalypse in which Christians will be jailed for their beliefs. “The Founders would be stunned if they ever saw the US Justice Department doing everything possible to force the Little Sisters of the Poor to okay providing contraceptives and abortion drugs. This isn’t a court case. It’s government gone wild,” he wrote in one post.
And the belief that the Obama administration is “bullying nuns” to violate their consciences has trickled on down throughout the Republican Party, from Chuck Norris to rank-and-file party members such as Florida Rep. Ron DeSantis, who said that “the Health and Human Services Department is forcing Catholic nuns, the Little Sisters of the Poor, to be complicit in abortifacients and other things that really go against core values of religious freedom.”
Completely lost to most Republicans is that the Obama administration long ago caved and said that faith-based nonprofits like the Little Sisters don’t have to provide contraception (or the non-existent “abortion-inducing drugs”) in their health plans. Becket was suing for the right of the Little Sisters to not have to notify the government of their intent to opt-out of the mandate, which they claimed would trigger the requirement that their insurer provide the coverage and, therefore, still render them complicit.
It was a battle they could never win. As Justice Sonia Sotomayor—who gave the nuns their original, dramatic New Year’s Eve stay from the mandate—asserted in her dissent from a similar claim made by Wheaton College, federal law triggers the alternative coverage, not the paperwork. And no matter how sincere one’s belief is that their religious liberty is being burdened, that “does not make it so,” she wrote. “The government must be allowed to handle the basic tasks of public administration in a manner that comports with common sense.”
To date, every federal appeals court has agreed with Sotomayor, which makes it unlikely that the Supreme Court will reopen the issue of the contraceptive mandate, which is what the Becket Fund was gunning for. But in the end, it doesn’t really matter. By challenging the initial mandate, Becket and its allies like the Alliance Defending Freedom and the U.S. Conference of Catholic Bishops got the Obama administration to create an exemption that sends the message that there’s something illicit about birth control. Then by fighting the perfectly reasonable accommodation, it turned the Little Sisters into a meme for the violation of religious liberty that conservatives will deploy for years to come in their fight for new laws and exemptions allowing faith-based discrimination. So sometimes, it seems, you can win by losing.