Obama vs. Little Sisters of the Poor

I have added my name to a friend of the court brief in the case of Little Sisters of the Poor vs. Burwell. Professor Nathanial Oman of the law school at William and Mary proposed and took the lead in writing this brief, which was joined by a number of concerned law professors. It was written to encourage the Supreme Court to hear an appeal from a Catholic charity (Little Sisters of the Poor) along with several other faith-based organizations being ordered by the Obama Administration to allow the government to use its health care plan to subsidize contraceptives and abortifacients (drugs that induce abortions in early pregnancy).

As its name suggests, the Little Sisters of the Poor is a Catholic order of nuns that cares for the poor (especially the elderly). The sisters are ruled by their Catholic faith, which among other things demands respect for all human life. As anyone at all familiar with contemporary debates knows, this precludes both contraception and any form of abortion, including that induced through chemical means very early in pregnancy. The Obama Administration, of course, is aggressively supportive of making abortion widely available, and also of subsidizing both contraceptives and abortifacient drugs. Perhaps its greatest success in this realm has been including coverage for these drugs under its nationalized health insurance program. Little Sisters of the Poor objects to having its healthcare plan used to subsidize drugs used for purposes (contraception and abortion) it finds morally objectionable.

The legal arguments involved are rooted in conflicting laws, constitutional provisions and forms of reasoning. Confusion and arbitrary “principles” are sadly common to most cases concerning religious rights in this era, ruled as it is by the false doctrine of a “wall of separation between church and state” (a doctrine found nowhere in our constitution) and occasional attempts by Congress to rein in the legal profession’s headlong drive to banish religion from the public square. To simplify, lower courts have refused to consider the sisters’ claims that they are being forced to violate their religious beliefs because they see no “burden” being attached to the exercise of religion. Why not? Because the Obama Administration has arranged for dissenting religious organizations to register that dissent, then fill out a form authorizing distribution of the subsidized contraceptives and/or abortifacients.

The Obama Administration’s theory is that this end run results in distribution of the contraceptives separately from the sisters, thereby eliminating any claim that they are suffering a burden on their free exercise of religion. But that is not how the process actually works. The sisters must hire a third-party administrator, who will review claims for health care expenses and see that contraceptives and abortifacients are distributed through the sisters’ own health care plan. And here we have the crux of the issue, for courts seem incapable of understanding a very basic facet of Catholic (and, indeed, most moral and religious) thinking, namely that one is implicated in the actions of oneself and of those to whom one gives one’s support. Even if I do not personally perform an abortion, I am responsible for abortions to the extent that I directly, knowingly support them, for instance by donating money to an abortion provider or speaking out in favor of policies supporting abortion.

This logic should be obvious. To make the point clear, simply substitute “execute all members” or, to be less provocative, “discriminate against all members” of any given racial, ethnic, or other minority group for the word “abortion.” Disagreements over the moral status of abortion are utterly irrelevant, here. The point is that if one thinks it a moral wrong to take action x, then to avoid directly engaging in that act, but continue supporting it through advocacy or monetary contributions or public association with those engaging in that act is to take on oneself culpability for that act. We are not morally responsible only for the actions we take, but also for the actions we support.

The Obama Administration’s position is that the sisters’ are not made to either pay for or speak out in favor of abortion rights. They merely have to fill out some paperwork and let their third-party administrator take care of providing the relevant drugs. But this is precisely the problem. The administrator is their administrator or agent, using their plan to distribute contraceptives and abortifacients.

Lawyers in particular generally discuss these kinds of issues in terms of property rights; in this way we can see the concrete issues of control and identification of persons with instrument and deeds that are involved. By essentially commandeering the sisters’ health care plan, the Obama Administration is using something the law recognizes as their property to undertake actions the sisters find deeply morally and religiously objectionable.

In law, the health care plan that is set up by a company or a charity is treated as its property. There are financial liabilities and rights involved that make this clear. And this means that to use a health care plan for purposes the owner finds objectionable is to direct the will of the health care plan’s owner in a burdensome manner. So long as the owner continues to “own” that plan, he or she is supporting, and telling the world, despite any protestations to the contrary, that he supports the action taken by the government. In our age of financial divestment programs, whereby pension plans and the like are lobbied to cut ties with various nations and companies deemed to engage in immoral conduct, it stretches credulity for Obama Administration supporters to claim that this reasoning is false or even obscure.

Lower courts have dismissed the sisters’ claims on the grounds that they are not forced to pay for the drugs, and that the forms they fill out indicate that they do not support the uses to which they are intended to be used. Thus, the concrete “burden” which courts in today’s litigation must find to be substantial if they are to even consider that the policy in question might not be permissible, is dismissed as minimal. But the burden is, in fact, extremely heavy for those with active consciences troubled by contemporary society’s callous attitude toward new life. Those who cannot fathom such scruples, like Appellate court Judge Richard Posner, may wax incredulous that the “mere” fact of having one’s property used to further acts one’s faith definitively declares immoral is a true burden. Judge Posner came quite close to calling the sisters liars for pointing out the distinction, quite clear in Catholic moral thought, between there being a law on the books allowing for contraceptives and abortifacients to be distributed freely and having one’s own health care plan commandeered for the purpose.

The friend of the court brief analogizes to the current situation through two hypothetical situations. First, suppose the government were to require that nuns personally distribute contraceptives and abortifacients to their employees. They would be compensated for their time and any expenses, and would even be allowed to express their personal objections to use of the drugs. But they would be forced to take the actions enabling conduct they find morally, religiously objectionable. In such a case, it would be clear that this overpowering of the conscience and will of the nuns would be constitutionally objectionable. What would we make, then, of a different case? Suppose now that the nuns are not forced to act, but rather forced to allow government officials to enter their religious facilities and use their medicine carts to distribute those same drugs. Again, the nuns would be reimbursed for any costs and would be allowed to express their opposition to contraception and abortion (provided, of course, such objections were not found to interfere with the distribution).

This second scenario is, in essence, what Obamacare demands. The property, the facilities and the personnel of the Little Sisters of the Poor are being commandeered for a purpose they find objectionable. Is the second scenario fundamentally different from the first? Here I quote the brief, which points out that the government’s actions in this second hypothetical “would directly burden the nuns’ religious exercise in the same way as the first hypothetical law, namely by making them an involuntary party to the distribution of medications to which they have serious and sincere religious objections. The fact that this hypothetical law is directed at the nuns’ property rather than at their bodies does not change the fact that they would be forced to be complicit in what they sincerely regard as sinful behavior.”

It is truly sad that today’s judges and lawyers, who so often seem to see themselves as philosophers rather than mere interpreters of the laws given to them, find it so hard to recognize the nature of the burden being placed on religious free exercise by the “contraception mandate” in Obamacare. A cynical person might find in this difficulty a will to ignorance regarding the moral implications of a practice we all know, deep down in our souls, is deeply, sadly, intrinsically immoral, whatever the tragic circumstances that might surround it, and whatever the responsibility those circumstances put on the rest of us to show sympathy, care, and support for all those involved.

Editor’s note: This column first appeared September 6, 2015 on Imaginative Conservative and is reprinted with permission.

Bruce Frohnen


Bruce Frohnen is Professor of Law at the Ohio Northern University College of Law. He is also a senior fellow at the Russell Kirk Center and author of many books including The New Communitarians and the Crisis of Modern Liberalism, and the editor of Rethinking Rights (with Ken Grasso), and The American Republic: Primary Source. His most recent book (with the late George Carey) is Constitutional Morality and the Rise of Quasi-Law (Harvard, 2016).