Challenging the Affordable Care Act’s “contraception mandate” in court is a matter of conscience, according to The Little Sisters of the Poor. It’s hard to fault people for following their moral compass. But I wonder if the Catholic long-term care provider has gotten the latest memos from Rome.
You can read about recent developments in the case here, but the basic facts are as follows:
The group of nuns, which runs 30 U.S. nursing homes, objects on moral grounds to the ACA’s requirement that health insurance plans offer birth control as one of the “essential benefits” falling under preventive care.
The organization can opt out of paying for this coverage by filling out a form. However, the Little Sisters organization objects to filling out the form, which would authorize the third-party insurer administering its employee health plans to provide the contraception coverage.
The nuns say filling out the form would make them complicit in arranging for the contraceptives, and their legal representatives at the Becket Fund have argued the Little Sisters therefore should not face penalties for refusing to complete the paperwork.
Another wrinkle: The Little Sisters use a “church plan” to provide employee health insurance. Church plans are not regulated by the government, so even if the Little Sisters sign the controversial form, its employees still will not have the birth control coverage mandated for other plans by the ACA.
I agree with Georgetown Law School’s Marty Lederman, who wonders how the Little Sisters organization even has standing to bring this suit. He asks, “How could the Little Sisters be complicit in their employees’ use of contraceptives if those employees will not receive reimbursement for those services?”
Note that Georgetown is a Catholic university — specifically, a university founded by the order of priests known as the Jesuits. No doubt the most famous living Jesuit is Pope Francis, who last month was named “Person of the Year” by TIME Magazine. I only recently read TIME’s profile of the pope, and I couldn’t help but think of the Little Sisters case as I did so. This doesn’t seem to be the sort of battle that Pope Francis would be very eager to fight.
First off, the case is highly legalistic. It’s not so much an objection to the contraception mandate as an objection to the method the government has created for organizations to receive relief from the mandate. Furthermore, as Lederman points out, the legal outcome really won’t have any real-world effect on the Little Sisters employees themselves.
This aspect of the case does not jibe with the course Francis has set. Since becoming pope last March, he has tried to steer the church away from legalistic arguments over doctrine. This separates him from his predecessors, Pope Benedict XVI and Pope John Paul II. Noting that Benedict and John Paul were “professors of theology” who focused largely on “doctrinal police work,” TIME described Pope Francis as taking an “argue less, accomplish more” approach that is less “obsessed” with divisive issues such as abortion and more focused on “the healing mission of the church” — addressing poverty, say. He is a pragmatist with a “don’t let the perfect be the enemy of the good” outlook, according to TIME.
It seems to me that the Little Sisters organization is very much letting the perfect be the enemy of the good in pursuing its lawsuit. The ACA is reforming the healthcare system to make coverage more universal, and the Medicaid expansion and subsidized health plans are allowing more poor people in particular to get needed healthcare. This is something the Catholic Church favors and was a major reason the church supported passage of the law. Granted, the law is not perfect — just about everyone has agreed on that. But from the perspective of the church, it should be a net good.
It would be one thing if the Little Sisters’ suit were a limited objection to a very specific part of the law, and the organization and the church as a whole continued to vigorously support the goals of expanded coverage. But the contraception issue has dramatically eroded the Catholic Church’s support of the ACA, in a way that I think illustrates how short-sighted its obsession with birth control and abortion issues can make it.
Consider what New York Archbishop Timothy Dolan, arguably the most high-profile U.S. Catholic leader, said on Meet the Press. The church wants to be a great “cheerleader” for the law, but the contraception mandate is unconscionable and causing the church to “draw back,” he said.
“Where we started bristling and saying, ‘Uh-oh, first of all this isn’t comprehensive, because it’s excluding … the unborn baby,’ so we began to bristle at that,” Dolan said.
I’m not the first to note that the law actually increases care for the unborn, by making maternity care one of the mandated “essential benefits” of health plans.
Beyond that, I think the church’s fixation on issues of reproduction and sexual ethics has caused it to get its wimples in a tangle over moral quandaries such as whether signing a waiver is the equivalent of handing out the pill. In the meantime, it has been pretty much silent on the ACA’s far more glaring problem: the lack of any meaningful long-term care component.
Considering that the Catholic Church favors universal healthcare coverage from conception to death, it should be a leading, vocal advocate of a long-term care financing system that allows people to live out their lives with dignity. In fact, it’s the mission of the Little Sisters of the Poor to provide high-quality care for elders, and its leadership must know first-hand the challenges of operating on margins dictated by Medicare and Medicaid — a system that affects providers’ ability to furnish the highest quality care, and affects seniors’ care options and the assets they can leave their children.
It seems to me that the Little Sisters could have used their expertise and moral authority more productively by advocating for long-term care reform, rather than stepping into the quagmire of the contraception mandate.
The “employment” page on the Little Sisters’ website concludes with a message that Pope John Paul II delivered to the staff of a Little Sisters home. It’s an eloquent statement affirming the work that caregivers do for the elderly. I just hope The Little Sisters are as attuned to the messages coming from the current pope as they are to messages they received from the Vatican in the past.
Tim Mullaney is Staff Writer at McKnight’s, and a graduate of a Catholic grade school and high school. Follow him @TimMullaneyLTC.
