3 Important Takeaways from the Little Sisters’ Victory
These arguments are offered to help Catholics, pro-lifers and people of good will defend the Supreme Court ruling against a shower of opposition in coming months.
The July 8 Supreme Court victory of the Little Sisters should be an occasion to rejoice for Catholics, pro-lifers and all people of good will who respect others’ consciences. Against a concerted push by the attorneys general of Pennsylvania and New Jersey, the Supreme Court reaffirmed the Trump Administration’s regulatory protection of the Little Sisters’ conscience rights not to have to fund contraceptives and abortifacients.
As Justice Thomas notes, this case has been going on for almost a decade. Obamacare defines the minimum coverage an approved health insurance plan must provide to include contraception. A number of religious employers took moral objection to being forced to fund contraceptives and abortifacients. The Obama Administration fought them in the federal courts until being handed a defeat by the Supreme Court in 2016 in Zubik v. Burwell.
The case should have ended back then. The incoming Trump administration, solicitous to protect the conscience rights of employers who had moral objections to funding contraceptives and abortifacients, promulgated protective rules. The Pennsylvania and New Jersey attorneys general challenged those protections, again dragging the Little Sisters through the federal courts in order to force them to pay for contraceptives and abortifacients. Those two states lost in Little Sisters of the Poor v. Pennsylvania. The ruling was 7-2, with Justices Breyer and Kagan filing separate opinions concurring in the outcome but not necessarily the reasoning, and Justices Ginsburg and Sotomayor rejecting both the decision and its logic.
Catholics, pro-lifers and people who respect others’ consciences are likely to face a torrent of opposition, especially in the next few days, as this strong ruling is characterized in the media as “an attack on women’s rights,” “a concession to religious extremism,” “an effort to take away birth control from women,” “further proof of the need to elect a ‘pro-choice’ President,” and numerous other untruths to drum up opposition. Against that storm, let’s be clear about three points:
Institutions Have Consciences, Too
The Little Sisters were being sued because they run a Pennsylvania home for the poor, and so have employees for whom they must provide health insurance. So this is really an effort to undermine the 2014 Burwell v. Hobby Lobby decision, protecting corporate conscience rights. That ruling still sits in pro-abortionists’ craws. “How can corporations have a conscience?”
Well, they do. The fact that like-minded people form together into groups, one of which is called a “corporation,” does not mean they must abandon their moral sensibilities. Hobby Lobby is a family-owned business, and that family shares a moral view. The fact that they have formed the kind of group that our society legally expects them to create when acting primarily as a business does not mean they have — or should have to — strip off their consciences. Being in business does not mean they are in it only for business. Presumably, we do not want to pretend that corporations or businesses or associations of people should be driven only by profit and utterly ignore any moral or ethical considerations.
Of course, nobody really believes that, anyway. If they did, then nobody would be asking the Fortune 500 to make statements against racism and for diversity. Nobody would say companies should have “corporate responsibility,” divest from fossil fuels, or dissociate from states that protect same-sex bathrooms. Nobody would have undertaken “shareholder motions” to ban investments in cigarette companies.
No, the honest truth is that nobody really believes corporations should have no conscience. What they really believe is that corporations and other associations should mirror their conscience, adopt their moral convictions, and follow their story line. Sorry, folks: if you think that, you first need to learn what a conscience is. What it isn’t is transferrable.
It’s Not Primarily about Contraceptives
Even the Supreme Court falls into this trap. Pro-abortionists have long encouraged sloppiness of language because, as the sorry legacy of legalized abortion has shown, manipulating language is prerequisite to pulling off change. That’s why “pro-abortionists” are already tsk-tsk-ing how this article “misrepresents” them because they are not “pro-abortion” but only “pro-choice” (and might even be “personally opposed” to homicide they – what? – “impersonally” support?).
Likewise, in Hobby Lobby, Burwell, and Little Sisters, three terms are sloppily used interchangeably: “contraceptive,” “birth control,” and “abortifacient.” To be more precise, “contraceptive” and “birth control” are used synonymously, while you probably never heard the word “abortifacient.” You should.
“Birth control” means controlling birth. “Birth control” includes both contraception and abortion. It could also include pre-birth driving of surgical scissors into the back of an unborn baby’s skull in the birth canal or administration of drug overdoses to stop his beating heart so that he does not emerge alive and raise all those pesky 14th Amendment questions about being “born in the United States” and thus a subject of rights.
“Contraceptive” for the average person means “preventing conception.” But if you thought that, you’d be … wrong! See, the American College of Obstetricians and Gynecologists redefined “pregnancy.” According to them, a woman is not pregnant when her ovum is fertilized by a man’s sperm, but when that fertilized ovum moves from her Fallopian tubes into her uterus and implants itself in the lining of the uterine wall (about 21 days after conception). Since, under ACOG magic, a woman is not (yet?) pregnant between the time she conceives her child and the time that child implants into her uterine wall, medications that stop that fertilized egg from developing are “contraceptives.”
“Abortifacient” is a term you are not going to hear from all the folks claiming that Little Sisters and Hobby Lobby and Burwell are stripping away access to “contraception,” but it’s a term you should know. Abortifacient are drugs that induce abortion, i.e., prevent a fertilized ovum from developing further. Some abortifacients (RU-486, Mifeprex and Misoprostol) work long into the first trimester (and not without being a bloody mess, as “Unplanned” makes clear). But some abortifacients — including the “Pill” — are “dual use,” i.e., they work both by preventing conception and by preventing the fertilized egg from implanting in the womb.
For persons who affirm that life begins at conception (including the Little Sisters), that’s a crucial difference. And it’s a difference their opponents — including the attorneys general of Pennsylvania and New Jersey — want to blur. Expect it also to be blurred by the “mainstream media” in its attacks on Little Sisters. It’s a distinction Catholics and pro-lifers cannot permit to be blurred. Step up and correct the record!
Privacy is Not a One-Way Street
Advocates of “contraception” (and abortifacients and birth control) insist that they are bolding defending the “right to privacy.” Expect almost immediately for them to join in a chorus of defense of non-motherhood, apple pie and Griswold v. Connecticut (the 1965 Supreme Court decision discovering a “right to privacy” that encompassed contraception and, eight years later, abortion).
Well, let’s take their argument at face value.
If contraception (including its various misrepresentations for Little Sisters purposes) is protected by “the right to privacy,” then what business does a person who wants to use it have in expecting somebody else to pay for it? Somebody else who does not share that person’s conviction? Little Sisters does not overturn Griswold: an American’s ability to obtain contraceptives (whatever that’s taken to mean) are intact.
Vatican II (Gaudium et spes, 16) affirms that a person’s innermost core of his conscience, his real “privacy” where he stands before and answerable to God. Somebody who honestly believes in “privacy,” then should at least acknowledge that he should not demand another to violate his conscience by participation in activity to which he has moral objection.
But the “right to privacy” of the Little Sisters’ opponents is one-sided: my “choice” is controlling even to the degree that you must facilitate it. You have no right in my bedroom … except for your wallet. You can’t say, “Bosses go, checkbooks stay!”
This is the same logic behind efforts to repeal the Hyde Amendment and pay for abortion under Medicaid. It refuses to recognize that there can be moral objections to abortion. It wants to use the law (which in their view is supposedly value-neutral) as a brush to paint morally controversial issues as one-moral-color-fits-all “healthcare.”
Again, proponents know that this is not true. The Little Sisters were not suing because they were forced to cover novocaine in dentistry. They were suing because they did not want to be complicit in buying medication they knew violated their moral conscience and, at least in some cases, contributed to unborn children’s deaths. But in the great omertà cover-up of abortion, that can’t be said, because it would deny the infallible teaching of feminist orthodoxy that abortion and appendectomy are morally identical.
“Be Prepared to Give a Defense”
These arguments are offered because Catholics, pro-lifers and people of good will should expect a shower of opposition in the wake of the Little Sisters ruling, not just this summer but all the way through November. After all, the rule under which the Little Sisters won was presidentially promulgated, and what one president does another can, with “a pen and a phone,” undo. Hopefully, the Little Sisters’ victory will not need to be re-litigated in February 2021, but Catholics need to have the arguments why.