Targeting Good Work

The Little Sisters of the Poor are a Roman Catholic organization focused on providing care to the elderly through the work of nuns, but their work has come under legal scrutiny by Pennsylvania Attorney General Josh Shapiro. Shapiro filed a lawsuit demanding that the Health and Human Services invalidate the exemption for organizations like Little Sisters’ and force them to provide contraceptives or pay millions of dollars in fines. The Sisters fought for the right to personally stand trial, but Shapiro initially refused until a court of appeals recently overruled him and permitted them to get there day in court to defend themselves.

This argument has already been heard in part by the Supreme Court in Zubik v Burwell (2016) and was sent back as the Court wanted to “afford the parties the opportunity to determine how to proceed in a manner that grants employees full contraceptives while also respecting the organization's religious exercise.”

Post Hobby Lobby the Little Sisters argue they shouldn't be forced to provide contraceptives and do not discriminate against employees who seek to get them elsewhere. Shapiro is seeking to remove their specific exemption as there are specific protection for church employees but in October 2017 the HHS allowed groups such as Little Sisters and religious nonprofits from refraining from required Obamacare contraceptives that specifically violated their faith. Shapiro filed suit and won court protection preventing members of the organization from taking part in the case let alone be in the courtroom which is creating a substantial burden on the rights of the women to advocate for their rights. Justice Alito wrote in Hobby Lobby that “the least restrictive means standard is exceptionally demanding and HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties in these cases.”

By this standard in which they protected for-profit large secular-minded corporations, it would be shocking that Pennsylvania fails to protect a not for profit organization that would be significantly burdened with the levying of hefty fines against the group committed to serving the elderly. In weighing the burden of the Little Sisters versus the ability of employees to receive the contraceptives the court would likely side with Little Sisters because there is a stronger burden on the Sisters side.

Overall Pennsylvania has little interest in putting a substantial burden amongst the Little Sisters, and it’s not imperative for a small nonprofit to provide specific contraceptives like a public corporation would need to do for its employees. The court has argued for  an accommodationist view for religious organizations concerning the definition and value of life. In a post-Citizens United society, organizations are permitted the same individual freedoms as any citizen no matter the discriminatory nature of the policy, even religious ones. Whether Shapiro likes it or not The Little Sisters had specific protection from the HHS and there undeniable status as a private non-profit permits them to religiously object to supplying certain contraceptives, as long as it isn’t a substantial burden on its employees. It seems unlikely any employee who is in need of contraceptives could not go elsewhere to receive them as there is no direct coverage for employees, yet  no restriction saying they can’t get it elsewhere. This already established precedent with the specific HHS exemption and Hobby Lobby ruling will make it nearly impossible for Pennsylvania to remove the exemption granted to the Little Sisters. Attorney General Shapiro might fight to remove this specific exemption for The Little Sisters yet there held the status of non-profit permits them to act in a religiously discriminatory nature as long as the accused discrimination comes under the tenets of their faith.

The Little Sisters of the Poor are a Catholic organization that is committed to serving the elderly, and religious traditions of refusing to provide specific contraceptives should not be seen as a substantial burden for the employees in need of it, though they might argue financial burden. Following Hobby Lobby, a well-intentioned group like this should not lose HHS exemptions simply because one State Attorney General deems the actions to be discriminatory as their committed religious background is enough to be granted immunity. The substantial fines that the government would levy on this group if they lost their exemption would prevent them from doing their amazing work with the elderly poor who are in need of assistance, no matter their religion. Following Hobby Lobby companies with existing exemptions should not be stripped of them no matter if a few deem them discriminatory.