Little Sisters hope contraception battle is nearing an end

Little Sisters hope contraception battle is nearing an end

Little Sisters hope contraception battle is nearing an end

Little Sisters of the Poor outside the Supreme Court of the United States after oral arguments for their case against the HHS mandate, April 14, 2016. (Credit: Becket Fund for Religious Liberty.)

Based on comments from President Donald Trump about the implications of his new executive order on religious freedom, the Little Sisters of the Poor hope their long legal struggle against the contraception mandates imposed as part of the Obama health care reform is almost over, saying "we're on the one-yard line ... we just have to get it over the goal line."

WASHINGTON, D.C. — One day after President Donald Trump issued his executive order on religious freedom and expressed support for the Little Sisters of the Poor during a White House ceremony marking the National Day of Prayer, a spokesperson for that religious community summed up her hopes for what lies ahead with a football analogy.

Rather than likening their situation to a “Hail Mary” pass, Sister Constance Veit compared the possible end of the Little Sisters’ five-year legal struggle over the HHS contraceptive mandate to finally being near the goal line after a long scoring drive.

“We’re on the one-yard line, first down. We just have to get it over the goal line,” she told Crux in an interview.

That optimism was echoed by Mark Rienzi, senior counsel at Becket, whose law firm known for its religious liberty advocacy represented the Little Sisters and some of the other religious groups in the case that the Supreme Court ruled on last May, vacating earlier judgments and remanding the cases back to four United States Courts of Appeal.

For nearly a year after the Supreme Court’s ruling, the cases have been in a sort of legal limbo, with the law firms representing the religious groups hoping for a compromise, and the government lawyers seemingly refusing to budge.

Trump’s executive order itself was criticized by some for vague and inconclusive language regarding the contraceptive mandate and other religious liberty issues. In a section titled “Conscience Protections with Respect to Preventive-Care Mandate,” the order stated, “The Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services shall consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate.”

But at the White House ceremony before signing the executive order, Trump decried the “attacks against the Little Sisters of the Poor,” whom he described as “incredible nuns who care for the sick, the elderly (and) the forgotten.”

He then invited the Little Sisters present to come and stand beside him, and shook the hands of two of them, including Mother Loraine Marie Maguire, the order’s provincial. The president congratulated them and told the sisters that they “sort of just won a lawsuit,” and added, “I want you to know, your long ordeal will soon be over.”

In an interview with Crux, Rienzi praised that public assurance by Trump.

“The president promised that their lawsuit would soon be resolved,” said Rienzi, who is also a law professor at The Catholic University of America. “The president is quite clear he is going to change the mandate, and the Little Sisters will get their relief. We think it’s very heartening.”

Before signing the order, Trump also said, “No American should be forced to choose between the dictates of the federal government and the tenets of their faith.”

The president’s words, and the executive order itself, also was praised by O. Carter Snead, professor of law and director of the University of Notre Dame’s Center for Ethics and Culture, a law professor who is an expert in health law and bioethics.

“In yesterday’s executive order, President Trump has taken an important step towards relieving religious nonprofits (such as the Little Sisters of the Poor) from an administrative regulation requiring them to facilitate access to drugs, devices, and procedures that they sincerely believe are both immoral and unjust,” Snead said in a statement provided to Crux.

Snead added that the order offered “a clear signal to the heads of the agencies who created this mandate – HHS, Treasury, and Labor – that they should begin the administrative process of revoking this coercive and misguided rule, so that religious social services, universities, and health providers can care for those in need in a manner that reflects their deeply held beliefs about human life and human flourishing.”

The consolidated Supreme Court case pitted seven groups of religious petitioners – including the Little Sisters and the Archdiocese of Washington, the Diocese of Pittsburgh, East Texas Baptist University and Nazarene University in Bethany, Oklahoma – in a legal fight against the HHS mandate, which they contended violated their religious freedom by requiring them to provide employee health insurance coverage for items such as abortion-inducing drugs, contraceptives and sterilization procedures not supported by their faith.

Eric Rassbach, a deputy general counsel for Becket, told Crux that the president’s executive order and his public promise about the case being resolved offered “a very good first step.”

The next steps, he said, would have to unfold in two arenas: the regulatory process and the courts. Rassbach said it is hoped that the government agencies “would consider a full exemption for religious non-profits like the Little Sisters of the Poor,” like the exemption currently offered to churches and dioceses.

In the courts, the contraceptive mandate opponents hope that government lawyers will drop their appeals and “admit they were wrong to impose the mandate on religious non-profits,” Rassbach said.

The Becket attorney added, “It’s show-me time,” for those government agencies and the Department of Justice, “and I think they will follow through on it. The president was pretty direct… I think we’re going to see action on it, and we hope it’ll be prompt.”

He noted that Tom Price, a medical doctor who serves as Health and Human Services director, issued a statement after the executive order was issued, saying he welcomed the opportunity to re-examine the contraceptive mandate.

“We will be taking action in short order to follow the president’s instruction to safeguard the deeply held religious beliefs of Americans who provide health insurance to their employees,” Price said.

Trump’s executive order, which was titled “Promoting Free Speech and Religious Liberty,” also drew support from Cardinal Daniel N. DiNardo, the archbishop of Galveston-Houston who serves as president of the United States Conference of Catholic Bishops.

In a statement, DiNardo said that the executive order “begins the process of alleviating the serious burden of the HHS mandate. We will engage with the Administration to ensure that adequate relief is provided to those with deeply held religious beliefs about some of the drugs, devices, and surgical procedures that HHS has sought to require people of faith to facilitate over the last several years.”

The USCCB president added, “We welcome a decision to provide a broad religious exemption to the HHS mandate, but will have to review the details of any regulatory proposals.”

In his remarks before signing the executive order, Trump expressed strong opposition to the Johnson Amendment, a congressional measure authored in 1954 by future President Lyndon Johnson that restricts religious and other non-profits from partisan political activity.  The amendment to the tax code, which has been in place since then, poses the threat of non-profits losing their tax-free status if they endorse candidates or political parties.

“This financial threat against the faith community is over,” Trump said in his remarks at the White House ceremony. “…Under my administration, free speech does not end at the steps of the cathedral or synagogue or any other house of worship.”

While the executive order does not reference the Johnson Amendment by name, it does say, “All executive departments and agencies shall, to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech.”

The president’s order added that “adverse action” like “the imposition of any tax or tax penalty; (or) the delay or denial of tax-exempt status” should not be taken by the Department of the Treasury against religious individuals or organizations who speak on behalf of or in opposition to a candidate for public office.

Father Frank Pavone, the national director of Priests for Life who participated in a committee of Catholic advisors for Trump during his presidential campaign, strongly praised that aspect of the executive order in a statement.

“This is truly a great day for religious freedom, for the pro-life movement, and for Priests for Life,” Pavone said. The priest said he hoped that clergy would move “away from the silly fear that a sermon on Sunday saying to vote pro-life means a visit on Monday from the IRS.”

John Carr, the director of the Initiative on Catholic Social Thought and Public Life at Georgetown University, had a different take, telling Crux, “It was encouraging that the president focused on this crucial topic (religious freedom). It was disappointing what the executive order actually did and said.”

Endorsing candidates from the pulpit is a bad idea, Carr said.

“I think most pastors do not make partisan endorsements for theological, pastoral and ecclesial reasons,” he said. “It’s neither good pastoral practice nor frankly, very helpful politically, to have pastors making endorsements.”

Carr noted that Cardinal Donald Wuerl, the archbishop of Washington, made a strong statement before the election urging clergy not to be partisan, but to teach laity the principles of the faith so they can make informed decisions at the ballot box.

“What pastors and preachers need to address are the human and moral dimensions of issues of life and death, justice and peace,” Carr said.

The Georgetown official – noting that a February survey by the National Association of Evangelicals found that almost 90 percent of pastors polled said that pastors should not endorse candidates from the pulpit – said he believed that aspect of the executive order “is based on a false premise.”

The dilemma for Catholics in engaging in partisan politics is that “neither party offers a consistent defense of human life and dignity, and almost no candidate fully reflects our teaching,” Carr said. “It would not only be divisive, but it would be counter-productive to have our pastors explicitly endorsing partisan candidates.”

John Garvey, the president of The Catholic University of America, also expressed concern about the government doing away with the Johnson Amendment, saying, “I think it would be a bad thing for the Church if it became a political party or an adjunct of one of the political parties.”

CUA’s president noted that now, the Church “is free to say what it thinks about abortion, family life, the environment or immigration. There’s no law against that.”

But Garvey, whose university was one of the plaintiffs challenging the contraceptive mandate, said he thought the executive order is “a good thing… He (the president) sent a pretty clear signal that religious freedom matters in this administration.”

Veit, the Little Sisters’ spokesperson, expressed hope that their legal case will be resolved soon, and “we’ll be able to go back to what we do, (and) take care of the elderly poor without anxiety and worry” and without devoting further time and attention to the controversy.

She said the experience led her to research her order’s history, and she saw how that over the centuries, the sisters tried to stay true to the vision of their foundress, St. Jeanne Jugan, and trust in God as they served the elderly poor. She noted that members of the order, founded in the wake of the French Revolution, over the centuries continued their service through civil wars and two world wars, and when sisters in communist China were imprisoned, they remained faithful.

Using another sports analogy, she said, “We’ve just stepped up to the plate to face challenges in our day… We’ve always stayed at the side of residents, and God has seen us through to the end.”

And if the threat of the large fines for not complying with the contraceptive mandate ultimately disappears, the Little Sisters of the Poor, and the poor elderly whom they serve, will be what they were before and have continued to be: Safe at home.

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