Little Sisters of the Poor Challenge the HHS Mandate

If successful, the class-action lawsuit could provide protection to several hundred other Catholic organizations.

WASHINGTON — Even as the House of Representatives, the U.S. Senate and the White House continue to play political and economic brinkmanship over tomorrow’s scheduled introduction of President Barack Obama’s health-care reforms, an international Catholic women’s religious order has filed an important legal challenge against the HHS mandate.

Marking a new development in a broad legal strategy to shield religious nonprofits from compliance with the federal abortion and contraception mandate, The Becket Fund for Religious Liberty, a public interest group, filed a class-action lawsuit Sept. 24 on behalf of Little Sisters of the Poor, an international order of Catholic sisters who care for needy elderly people.

The class-action suit includes the Little Sisters’ health-benefits providers, Christian Brothers Services and Christian Brothers Employee Benefits Trust, an organization that provides health-care benefits to religious organizations.

The Becket Fund is litigating the case along with Kevin Walsh, a law professor at the University of Richmond, and Locke Lord LLP, a national law firm.

A statement posted on the Becket Fund’s website notes that the “lawsuit is the first of its kind, both because it is a class-action suit that will represent hundreds of Catholic nonprofit ministries with similar beliefs and because it is the first on behalf of benefits providers who cannot comply with the mandate.”

The Becket Fund represents the Eternal Word Television Network, among other plaintiffs, in its legal challenge against the mandate. The Register is a service of EWTN.


Religious-Freedom Threat

About 30 for-profit employers have already filed legal challenges to the mandate, and some have secured temporary injunctions to shield them from massive penalties if they fail to provide co-pay-free contraception, abortion-inducing drugs and sterilization. The U.S. government has petitioned the Supreme Court to hear an appeal in its case with the retail chain Hobby Lobby.

Meanwhile, an estimated 42 religious nonprofits have also filed legal challenges to the mandate, with an extended January 2014 deadline for compliance just months away.

The Christian Brothers' legal challenge underscores the broad threat to religious freedom posed by the HHS mandate. 

The Christian Brothers provide health-care benefits in harmony with Church moral teaching and thus have attracted many Catholic employers. This lawsuit serves as a reminder that the framework, which has provided a morally consistent approach to employee benefits, is now in jeopardy.

“Christian Brothers is a health-benefits trust — commonly called a ‘church plan’ — that provides employee health benefits for hundreds of Catholic organizations across the country,” Mark Rienzi, senior counsel for the Becket Fund, told the Register.  

“If successful, [the class-action lawsuit] would bring protection not just to the Little Sisters, but to hundreds of other religious social-service organizations who use  Christian Brothers for their health benefits, said Rienzi.

“There are too many religious organizations — and too few religious-liberty lawyers — to litigate each of these cases one at a time. The class-action vehicle can provide relief for hundreds of groups in a single suit.”


Millions of Dollars in Fines

The Little Sisters of the Poor have taken a central role in this new legal development. If they refuse to provide contraception through their employee insurance plan, said Rienzi, they could face fines of $100 per day per employee, totaling millions of dollars in annual penalties.

The Little Sisters were founded in France in 1839 by St. Jeanne Jugan, who began the order by bringing one elderly woman into her home to protect her from the cold. Members of the religious order now work in 31 countries and care for 13,000 people across six continents.

According to Sister Constance Carolyn, who works in the order’s publications office, the sisters serve in 30 homes in the United States. She estimated that the cost of projected fines from the HHS mandate will be $2 million annually for homes that employ 50 people.

“We care for and employ persons of every race and religion, as well as those with no religion,” she told the Register. “We don’t care for people because they are Catholic, but because we are.”

Despite their clear religious commitment, the Little Sisters’ social outreach do not qualify for a religious exemption under the Obama administration’s current regulations.

Rienzi explained that the current HHS exemption only applies to houses of worship, but not to Church-affiliated social- services organizations like the Little Sisters’ homes.

Rienzi called the limited exemption “absolutely unprecedented,” and he explained that the Obama administration is relying upon the Internal Revenue Service’s standard to define what should be an exempted religious employer, rather than the more expansive definition that has been included in past health-care laws.

“They are using tax terms to define who gets liberty and who does not,” Rienzi charged.


Violation of Religious Vows

The Little Sisters take vows of chastity, poverty, obedience and hospitality. In a statement, Sister Lorraine Marie, superior for one of the U.S. provinces of Little Sisters, explained that complying with the HHS mandate would violate these vows.

“Like all of the Little Sisters, I have vowed to God and the Roman Catholic Church that I will treat all life as valuable, and I have dedicated my life to that work,” she said in the statement.

“We cannot violate our vows by participating in the government’s program to provide access to abortion-inducing drugs.”

Sister Constance echoed this sentiment: “The government shouldn’t force us to abandon part of our faith at the price of continuing our mission.”

Thus, even though the Little Sisters are confronting the prospect of $2 million in annual fines, she said the order has “no plans” to shut down their ministry in the United States.

“St. Jeanne Jugan used to say, ‘If God is with us, it will be accomplished. If God fills this house, he will not abandon it,’” said Sister Constance.

“She had tremendous trust in divine Providence to provide for our needs. Today, we are putting the confidence she taught us into practice and hoping and praying for a resolution to this issue.”

Sister Constance called the demands from the Department of Health and Human Services “impossible.” She noted that the government has provided exemptions for many other employers and said that the Little Sisters expect the HHS Department to exempt them as well.


Broader Implications

The outcome of their case will not only affect the order, however. Because the Little Sisters’ legal challenge is part of a class-action suit, a future ruling will also determine whether the Christian Brothers Employee Benefits Trust and Christian Brother Services, among other religious nonprofits, will be shielded from the mandate.

“Because it is class action,” Rienzi explained, “it has the chance to provide protection to several hundred Catholic organizations in one shot.”

Register correspondent Christopher Crawford is the

director of pro-life ministry at The George Washington University.