This week, the Supreme Court heard the case of The Little Sisters of the Poor, who are in opposition to the provision within the Affordable Care Act (ACA) regarding access to contraception.

The Little Sisters are Catholic nuns who operate 30 nursing homes for the poor and elderly across the United States, providing care to those in great need. It is an admirable mission and well recognized for the care and compassion the sisters and their nursing homes provide.

The nuns, by their vows, do not need contraceptives, nor do the elderly charges under their care. But the nursing homes the sisters operate employ workers, both Catholic and non-Catholic, who are or may be, of reproductive age.

The Catholic Church has opposed contraception steadfastly as a religious principle for its long history. Catholic doctrine teaches that sex is a gift from the Creator and that every act of sexual intercourse must be open to the creation of new life. Given this religious principle, it should not be surprising that the church has concern over the ACA, as it provides free contraception as a healthcare coverage benefit to all except those directly associated with a church.

The government, in administrating the ACA, has provided a solution to the issue by allowing anyone with religious objection to contraception to simply inform their insurer that they object and will not pay for contraceptive services for their Catholic or non-Catholic employees.

This remedy then creates a separate relationship with the insurance provider and any employee who would wish to have coverage for their use of contraceptives. The insurer offers the coverage only by not charging the employer, in this case the Little Sisters, and by communicating only with those seeking coverage directly with the insurer.

However, the Little Sisters view the writing of the letter of objection as complicity with contraception and therefore a violation of their faith.

Six of seven lower courts have ruled against the Little Sisters in this case, and one court has ruled in favor of the Little Sisters. The Supreme Court elected to hear the case in order to resolve the differing outcomes in the lower courts.

But with the Supreme Court missing one justice since the death of Antonin Scalia, the Court may end up in a four to four tie ruling, which would send the decisions back to the lower courts to stand as ruled already.

How do the justices know where the boundaries of religious freedom are set, where the rights of the individual must also be recognized?

Clearly, the Catholic Church has long recognized a tradition opposing the use of contraception. But, there is a difference in what the church teaches and in what Catholic women of reproductive age practice. In practice, 98 percent of Catholic women of child bearing age use some form of contraception.

Consequently, the Little Sisters of the Poor are, in practice, not representing the women of their own faith, much less the employees who are not Catholic and work in the Sisters’ nursing homes. Nor are the Sisters representing themselves or their patients/residents.

The Little Sisters of the Poor represent a theological position that in practice has nearly zero application. Protecting the religious right here to oppose contraception serves only to deny women who use contraception already from having coverage as part of their healthcare.

While the opt out process provides a clear path for the Little Sisters to refuse to support contraception, their insistence to go a step farther and insist that no employee, Catholic or not, may have contraception coverage, seems to violate the rights of thousands of women who chose only to work for the Sisters, not to obey the constraints of the Catholic faith.

Had every employee willingly, when hired, accepted that their employment would have the condition of submission to the Catholic Church, then the church might have rightly argued, practice non-withstanding, that their employees had known this right, contraception, was not to be available to individuals.

Justice has many faces, and here, though sincere in conviction, the Little Sisters of the Poor are arguing against those they trust every day to care for their charges. There is greater wisdom in following a different path.

 

Jim Crawford is a retired educator and political enthusiast living here in the Tri-State.