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The Podium

Little Sisters of the Poor against Affordable Care Act

Pope Francis recently said, “[l]et us imagine a moment what would happen if there were no nuns in hospitals, no nuns in missions, no nuns in schools. Imagine a church without nuns! It is unimaginable.”

There are over 50,000 American nuns who teach in schools, minister to the poor, counsel wary immigrant families, assist battered woman, run food shelters, tend to the poor, care for the sick, and minister to the elderly in nursing homes.

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The Little Sisters of the Poor, one order of these nuns, was founded in France almost 200 years ago. Two nuns arrived in Boston in 1870. They first established a home for the poor in Roxbury and now operate a large elderly care facility in Somerville.

This small order has achieved unwelcome global notoriety because it has sued the government in federal court claiming that applying the Affordable Care Act contraceptive coverage mandate is in violation of the religious freedom provisions of the First Amendment as well as other federal laws protecting them from government interference with their practice of religion. Under the mandate, failure to assist, directly or indirectly, in providing their employees with contraception drugs can lead to enormous fines.

One need not accept the Church’s contraception position, but it is quite clear: Life begins at fertilization and the formation of the embryo. While it may take 2-6 days for the embryo to attach to the lining of the uterine wall, it is a sin to take any steps to interfere with that “implantation.” Plan B, required by the Mandate, the so-called morning after drug, along with the “ella” drug (about one week) will, in a majority of cases, stop “implantation.” For the nuns,that is a sin.

If the nuns object to providing coverage, they need not provide it. However, they must fill out and sign a certificate stating they have an objection based on religious grounds and send it to their group plan. Although the law states that the plan cannot refuse to provide coverage (at no cost to the nuns), government lawyers now concede that, for the moment, the type of group plans for charities like the nuns need not comply with the mandate either.

If nothing can happen, why not fill out the form? On the form is an explicit acknowledgement of the mandate and a signature compels the group plan to provide the drugs. The government is intent on finding a way to defeat the present group plan exemption. The nuns, and hundreds of other religious groups, refuse to sign because of their beliefs that such conduct will exhibit illicit complicity in a moral wrong and amount to a “scandal” — a dreaded sin. Even the government doesn’t challenge their belief.

Some judges, faced with cases where it is agreed there will be no coverage, have asked the government lawyers to clarify their argument. The response: the nuns still need to fill out the form even if nothing will happen — prompting several incredulous federal judges to call this the “it’s just a form” argument. It recalls the arguments by friends of Saint Thomas More — t’s just an oath — please just take it, it doesn’t mean anything. Little wonder that the government has won only 1 out of 19 such non-profit religious entity cases.

This order of nuns will never sign the form. If they lose their court case, they will go out of business in this country.

On Jan. 24, the justices of the Supreme Court felt that resolve and stopped the government until future notice. Oh, they did ask the nuns to just send a letter on their stationery objecting to the law, something they have been doing for 2 years.

The Pope will soon learn that this order and thousands of others may soon be forced to close because of the contraceptive drug Mandates contained in ACA. He will, no doubt, discuss this during the President’s March 27 Vatican meeting. I’m sure the president is hoping that the Pope will not quote the famous question to Saint Paul — “Saul, Saul — why do you persecute me?”

Thomas E. Dwyer Jr. is a Boston lawyer and former president of the Boston Bar Association. He is not involved in any of these lawsuits.
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