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God and the Affordable Care Act

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Nuns fret not at their convent's narrow room.

-- William Wordsworth, "Nuns Fret Not"

Many readers have asked me to explain matters legal and, in this case, ecclesiastical. I respond to their requests with humility and an awareness that when it comes to matters ecclesiastical I am more of a critic than a teacher. Nonetheless, I am grateful for the confidence readers show in my good judgment in asking me to explain the legalities involving the "Little Sisters of the Poor Home for the Aged."

When Congress was considering enacting the Affordable Care Act, many groups of nuns were enthusiastic supporters. Indeed, prior to the act's adoption, fifty-four nuns who identified themselves as heads of major Catholic women's religious orders in the United States sent a letter to Congress urging adoption of the Affordable Care Health Act. They said, "We have witnessed firsthand the impact of our national health care crisis, particularly its impact on women, children and people who are poor...Congress must act." The leader of the Little Sisters of the Poor was not among the signers of the letter.

The Little Sisters is a Denver-based, religiously affiliated, nonprofit charitable organization that operates nursing homes across the United States. In addition to its charitable work it has been engaging in litigating with the United States government over a matter that has no substance, but has given it a high profile. Many nuns can say they're in more or less constant contact with God, but few can say, as the Little Sisters can, that they've also been in contact with the U.S. Supreme Court and that that body granted their petition in a more tangible way than God usually does.

The litigation in which the formerly petulant Little Sisters are involved pertains to requirements to which they are subject under the Affordable Care Act (ACA.) Under the ACA, religious organizations that object to providing contraceptive coverage to employees must sign an EBSA Form 700-Certification. The representative of an organization who signs that form certifies that:

On account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered; and the organization is organized and operates as a nonprofit entity; and the organization holds itself out as a religious organization.

The insurance company or administrator receiving the form then arranges for contraceptive coverage to be made available to female employees of the entity.

The nuns began the lawsuit because of instructions that the nuns' lawyer, Mark Rienzi, said that the nuns had received from God. God, who is unfamiliar with legal niceties, instructed the nuns that they could not sign EBSA Form 700-Certification. That was because God thought if they signed, the company administering the nuns' employee benefit plan would be required to furnish contraceptive coverage to the nuns' employees. God did not realize that the Employee Retirement Income Security Act of 1974 (ERISA) says that no government regulation of an employee benefit plan run by a religious organization is permitted.

The nuns' plan is administered by the Christian Brothers. Under ERISA, the Christian Brothers are not required to provide contraceptive coverage to employees who work for the nuns who, having taken vows of chastity, have no need of contraceptives anyway, and little sympathy for those who do. That exception did not, however, satisfy the petulant Little Sisters whose petulance was not overcome simply because they could get the result they claimed to want by signing the form. They went to the Supreme Court to obtain a waiver from the need to sign the form to avoid penalties that would otherwise be assessed against them for refusing to provide coverage to their employees. The Supreme Court temporarily blocked the enforcement of any penalties on the Petulant Little Sisters pending the outcome of a trial on the merits.

The no-longer petulant Little Sisters were thrilled. There were pictures of the contraceptive free Little Sisters cheering and raising their hands in gestures of gratitude to God (and the U.S. Supreme Court) for having heard their prayers and relieving them of the need to sign ESBA Form 700, Instead of signing that form and stating that they are a religious organization and object to "providing coverage for some or all of any contraceptive services" they must now, in a letter addressed to the secretary of health and human services, inform the secretary that "they are nonprofit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services." The non-lawyer will have difficulty understanding how what the Little Sisters tell the secretary differs from what the form says.

The injunction means that the nuns will not be forced to sign and deliver ESBA Form 700 to the Christian Brothers, and the Christian Brothers will not have to ignore it. The nuns' lawyer probably overlooked the fact that the clumsily worded instructions on the form have no applicability to the Christian Brothers because of ERISA. If God had been aware of ERISA, he might well have told the nuns to get on with His work and stay out of court. One can hardly fault Him for not fully understanding the language on ESBA Form 700. It is poorly thought out. So is the Supreme Court's decision supporting the Little Sisters.

Christopher Brauchli can be emailed at brauchli.56@post.harvard.edu. For political commentary see his web page at http://humanraceandothersports.com