Editor's note: Developments have occurred since NCR published this story in print. Reuters reported that on Aug. 21, Denver's 10th Circuit Court of Appeals granted the Little Sisters of the Poor's request for a stay of the earlier court ruling that the order has to comply with the government requirement to provide contraceptives, abortifacients, sterilization and related counseling (CASC mandate) to their employees. With the ruling on hold, the order now has time to petition the U.S. Supreme Court.
When lawyers are preparing a precedent-setting case, they look for attractive plaintiffs. In the recent Supreme Court decision on same-sex marriage, for example, the plaintiffs included a man who had cared faithfully for his spouse as the man died of ALS. Whatever your feelings about the argument or the law, this is a man to be respected and admired.
So it has been surprising to me that the Obama administration persists in its insistence that the Little Sisters of the Poor bend the knee before the government requirement that the sisters' health care plan provide contraceptives, abortifacients, sterilization and related counseling (CASC mandate) to their employees. At the very least, it would seem the government attorneys would know an attractive plaintiff when they see one.
The Little Sister of the Poor I knew best was my husband's great-aunt, Sr. Melanie de St. Rose. She entered the order as a girl, and was sent to France, where, during World War II, she oversaw a home for the elderly poor. Food was scarce. Sr. Melanie and the other women in the order took the least food and the worst food so that those in their care could eat. The war years took a toll on her health.
She returned home to Colorado and moved into the Little Sisters of the Poor's Mullen House in Denver. Those were good years for Sr. Melanie, even as her health deteriorated and she underwent the amputation of her leg. Her brother, Chris, and his wife, Mary, also lived in the home. Great nieces and nephews and their children came to visit. When Sr. Melanie died, we stood over her coffin, brought to silence by the realization that she was being buried with every single thing she owned: her rosary, her habit and her copy of the rule, which she wore under her habit, just over her heart.
The Little Sisters of the Poor are a mendicant order. They beg for money to keep their homes and care facilities staffed and running. They are not political, though they have been drawn into these politics. They just do the work to which they have been called, the work Jesus commands in the Gospels: feeding the hungry, caring for the sick, welcoming the stranger.
The Obama administration says that the Little Sisters of the Poor are not a church, and so are not eligible for an exemption from the CASC mandate. They may not be a church, but they are the church, doing the works of mercy that are, or should be, its hallmark.
The story grows more curious. CASC services were never a part of their health care package. I'm guessing that people who applied to work for the Little Sisters of the Poor saw the habits and the crucifixes and the chapels and figured out that this is a Roman Catholic institution and so they are probably not on board with paying for contraceptives or abortifacients for their employees.
And CASC services still don't need to be part of their health care package. For those who cannot afford $9 per month that Walmart charges for 12 different choices of birth control pills, there are a number of government programs available, including Title X of the Public Health Service Act, Temporary Assistance for Needy Families and Medicaid. The government spends more than $2.4 billion annually for such services. There are 8,409 safety net clinics, 3,165 federally qualified health centers, 2,439 health department clinics, 1,324 other clinics, and 664 hospital clinics that, according to the Guttmacher Institute, all provide subsidized family planning services.
The Obama administration says that the CASC services must be a part of the sisters' health care plan. (Because, remember, they're not a church.) They say they have given the sisters an "augmented accommodation." It insures that all the employees of the Little Sisters of the Poor have access to CASC services by setting up a Rube Goldbergian series of letters or notices that finally reach a third-party administrator (TPA) that provides the services.
Picture the contraption: The sisters send a letter to HHS (ding!), saying they're morally opposed to the services, but they've been ordered by the government to give over their own plan in order that the services will be delivered (whoops!), so HHS then sends the letter down a chute to the Labor Department (swoosh!), which in turn forces the letter through a funnel (plop!) into the hands of the TPA (clang!), who provides the contraceptives and abortifacients for the sisters' employees. All of this within the sisters' own plan and under their name.
"See how clean that is?" the government says to the sisters. "You don't have to dirty your hands at all."
But hands-on is how the sisters live. They don't ask others to beg for money. They beg. They don't ask others to wash failing bodies and tend bedsores and change soiled pants and wipe mouths; they only ask others to join them in the holy work.
They understand, in their bones, the difference between acting and standing back as another acts in your name. And standing back is just not the way of the Little Sisters of the Poor. They live their calling, and their calling, as they understand it, is not to be involved in purchasing or supplying contraceptives or abortifacients, even if the actual purchase and delivery takes place out of their sight.
Theologian Stanley Hauerwas once observed that every religion worth following has rules about sex and food. Why? Because both sex and food are powerful. The comedian Jim Gaffigan says that the power of bacon is such that some religions make not eating it a condition for joining.
But we make a mistake when we believe that orthodoxy is always and only religious. There is a sexual orthodoxy in the land that says while there can be rules about food (a law against the 64-ounce soda ring a bell?), there must never, under any circumstances, be any rules about sexual behaviors.
If you believe that abortion takes the life of a child, well, as a bumper sticker popular in my neighborhood says, "Don't have one." In other words, do whatever you want in the privacy of your home, or church or mosque or synagogue, but don't let it leak out of those walls. Or there will be consequences.
The consequences for the Little Sisters of the Poor remaining true to their consciences and their practices? They can stop insuring their employees, and pay an annual fine of $2,000 per employee. But leaving their employees uninsured also violates their consciences.
So, they can provide insurance without the CASC services (the insurance they have always offered) and pay an annual fine of $36,500 per employee. Which will probably shut down many of the homes where they care for the elderly poor.
We can count the cost of the fines this current orthodoxy demands. We may never be able to count, or bear, the cost of the loss of their good work, these women who care for the least and the last.
[Melissa Musick Nussbaum's online column for NCR is at NCRonline.org/blogs/my-table-spread. More of her work is at the catholiccatalogue.com.]