The Little Sisters’ case against Obamacare gets even more absurd

A nun and a nurse visit with a resident of a Little Sisters of the Poor home for the aged in Denver.
A nun and a nurse visit with a resident of a Little Sisters of the Poor home for the aged in Denver.
(Brennan Linsley / Associated Press)

The Supreme Court on Friday gave the Little Sisters of the Poor, a Catholic order of nuns, temporary relief on their claim that filling out a government form saying they’re against providing contraceptive services to employees was tantamount to participating in the provision of contraceptive services to employees, and therefore just as offensive to their religion.

We explained the rank absurdity of the Little Sisters’ claim here.

In a one-paragraph unsigned ruling, the court said, OK, the Sisters don’t have to fill out the specified government form, but they do have to fill out a form that says exactly the same thing. The ruling sends the case back to the Denver federal appeals court that last rejected the Sisters’ position, but doesn’t tell that court how to rule -- it’s just an injunction relieving the Sisters from filling out the form until the appeals court makes a final decision.


Some legal analysts think this is at least a “partial” victory for the Little Sisters, who operate a string of nursing homes and employ about 75 people eligible for health insurance under the federal healthcare law.

Others, such as Rick Hasen of UC Irvine, think not. Comparing what the sisters objected to doing with what they must now do, he asks, “How is this any different? ... What looks like a victory against having to do a symbolic act may really be a defeat in having to do the nearly identical symbolic act.” Further learned analysis by legal experts can be found from Mike Dorf here and Marty Lederman here.

It’s tempting to see the progress of the case as proof of Mr. Bumble’s observation in “Oliver Twist”: “The law is a ass.”

To be specific, the sisters objected to filling out the government’s Form 700, which is required of church-affiliated enterprises objecting to providing contraceptive services to employees at no charge, as the Affordable Care Act requires. They’re required to submit the form to their insurance providers so the insurers can fulfill the other part of the accommodation the government devised to get those services to the employees despite the employers’ objections: The insurers deliver the services at government expense.

The Little Sisters maintained that filling out the form was just as bad as providing contraception themselves, because it triggered the process of someone else providing contraception in their stead. What made this claim especially absurd in this case, however, was that the sisters’ insurer, Christian Brothers Services, is exempt from the healthcare law’s contraceptive requirement. As a result, nothing the Little Sisters did actually would result in anyone’s getting contraceptives.

Under the high court’s order, the Little Sisters still have to inform the government in writing of their objection to contraception, in language of their own choice. They don’t have to send the certification directly to their insurer. But presumably they’ll still have to inform their insurer in some formal way that they’ve filed the objection.


In many ways, the Little Sisters case is a sideshow to a more important claims brought by the University of Notre Dame and other Catholic-affiliated institutions whose employees actually would receive contraceptive services as a result of Form 700. Their claims are probably destined for a fuller review by the Supreme Court, however, because lower courts have split on the topic.

In a withering opinion, U.S. District Judge Philip P. Simon of South Bend, Ind., last month rejected Notre Dame’s claim that filling out Form 700 imposed a religious burden. “Notre Dame wants to eat its cake, and have it still,” he wrote. “Notre Dame is free to opt out of providing the coverage itself, but it can’t stop anyone else from providing it. But that is essentially what Notre Dame is requesting.” In other words, he wrote, the university is trying to exert “a veto over public programs that do not prohibit the free exercise of religion.”

On the other side of the coin, a Brooklyn federal judge last month granted an injunction sought by Catholic High Schools in New York on the same issue, accepting their contention that “self-certification” (that is, filling out Form 700) is “a compelled act that they believe forbidden.”

Of course, these cases pale next to the big issue the Supreme Court has accepted for argument this spring -- the so-called Hobby Lobby case in which the owners of private, nonsectarian businesses claim that the contraceptive mandate violates their personal beliefs. Plainly, the challenges to the healthcare law by religious believers uneasy about operating in the secular world and living by secular rules are not over yet, and the Supreme Court has just begun to weigh them.