Pay No Attention to Those Tens of Thousands of Women Affected by the Contraception Litigation

Photo: Hobby Lobby
Flickr/Creative Commons—m01229

By Gregory M. Lipper

In her latest column, Linda Greenhouse predicts that the Supreme Court’s order in Zubik v. Burwell will not produce the desired happy compromise between the government and the religious organizations who object to the government’s arranging for their students and staff to receive contraceptive coverage from third parties. Towards the end, Greenhouse also describes how the objectors have inaccurately insisted that these cases are about nuns and only nuns—ignoring the dozens of other plaintiffs whose students and staff number in the tens of thousands—and how legal commentators (some of whom should know better) have gone along:

[T]here is a widespread misunderstanding that the case is about nuns, specifically the Little Sisters of the Poor, a religious order whose mission is to run nursing homes for the elderly poor. Commentary following last week’s decision perpetuated this misunderstanding. “Surely the Obama administration could find a way to provide contraception to women without involving a group of Catholic nuns,” Ramesh Ponneru, a senior editor of National Review, wrote in a Bloomberg News post titled “The Culture War Obama Didn’t Have to Wage.” Richard W. Garnett, a law professor at the University of Notre Dame, wrote on Scotusblog that the Obama administration had “aggressively and unlawfully overreached” in its “strange insistence that a community of nuns who take vows of poverty and care for the elderly poor must serve as a vehicle for delivering free contraception to their employees.” In a Wall Street Journal column titled “Big Win for Little Sisters,” William McGurn wrote that “though it was more a TKO than a straight-up ruling, the Little Sisters prevailed at the Supreme Court Monday in their fight against the Obamacare contraceptive mandate.”

This single-minded focus on Little Sisters of the Poor—which itself employs hundreds of people of different religious faiths in multiple states—overlooked the tens of thousands of women who will lose contraceptive coverage if the objectors prevail:

By my count, the Little Sisters of the Poor (who, as I’ve noted before, advertise themselves as equal-opportunity employers in the nursing home enterprise) are only one of 30 petitioners in the seven Supreme Court cases. The other 29 include Catholic and Baptist colleges, Catholic high schools, individual bishops, two chapters of Catholic Charities, other charities, and several individuals.

If anything, there are more objectors and more affected women than even Greenhouse suggests.

First, in addition to the 30 organizations before the Supreme Court in Zubik, there are several other cases (all over the country) brought by dozens of other nonprofit organizations; after the Court issued its order in Zubik, the Court issued separate orders sending these cases back to the lower courts too. The plaintiffs in these other cases include social-service providers, healthcare systems, and colleges and universities—including the University of Notre Dame, whose health plans cover nearly 14,000 people.

Second, there are dozens of for-profit corporations waiting in the wings. In response to the 2014 Hobby Lobby decision, the government extended the nonprofit accommodation to closely held for-profit corporations. “Closely held,” I should add, does not mean “small”: Hobby Lobby, for instance, has 600 stores and 23,000 employees. Zubik affects these employees, because if the accommodation can’t be applied to nonprofit objectors, then it probably can’t be applied to the for-profit objectors.

In other words, the one-track focus on the Little Sisters overlooks the tens of thousands of women affected by these cases and who risk losing the contraceptive coverage to which they’re entitled by law.

Greg Lipper (@theglipper) is Senior Litigation Counsel at Americans United for Separation of Church and State.

One thought to “Pay No Attention to Those Tens of Thousands of Women Affected by the Contraception Litigation”

  1. There is a fundamental problem with this article: nothing in the Religious Freedom Restoration Act (RFRA) takes into account the effect on third parties, except for the compelling-interest-as-applied-to-the-claimant test. (Cf., 42 USC 2000bb-1 (b)) Even then, as noted in the RFRA’s text, the government must demonstrate “application of the burden to the person … is in furtherance of a compelling governmental interest”; the part to which I call Your attention is “application of the burden to the person” so burdened. The government would have to show providing this coverage for the EMPLOYEES of the LITTLE SISTERS is a compelling government interest. Your entire article is baseless because it presumes a distinctly different statute than what is in existence. I would have expected You to know what a statute actually says before offering a legal analysis on it.

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