Fact Check: Did Xavier Becerra sue a Catholic charity over contraceptives?

Republicans trying to sink California Attorney General Xavier Becerra’s nomination to join President Joe Biden’s cabinet as health secretary are frequently citing California’s ongoing litigation involving the Little Sisters of the Poor, a Catholic nonprofit run by nuns.

The charge centers on a lawsuit Becerra filed against the administration of former President Donald Trump in 2017, hours after the Department of Health and Human Services announced a proposed rule to expand religious exemptions for employers that did not want to provide coverage for contraceptives through insurance plans.

The proposed exemption California sought to block would apply to any organization that declined to provide contraceptives citing a religious objection, rather than solely for religious organizations.

Claims: Republicans have taken Becerra to task over the lawsuit — one of 123 he filed against the Trump administration — saying it shows Becerra is a partisan on abortion and used his powerful office to target nuns.

“He used his taxpayer-funded office to sue Catholic nuns who didn’t want government forcing them to violate their beliefs,” said Minority Leader Mitch McConnell, R-Kentucky, in a floor speech this week. “This is a pattern with Mr. Becerra.”

Sen. Ben Sasse, R-Nebraska, echoed those concerns while questioning Becerra in a hearing Wednesday.

“You said you never sued the nuns, which is a pretty interesting way of reframing your bullying,” said Sen. Ben Sasse, R-Nebraska, during one of Becerra’s confirmation hearings.

“You say you didn’t sue the nuns, you sued the federal government that was keeping you from making sure that the nuns had to buy contraceptive insurance,” Sasse continued. “Were the nuns going to get pregnant?”

Rating: Misleading

Analysis: Becerra’s office did not initiate a lawsuit against Little Sisters of the Poor, but his office is engaged in litigation with the Catholic charity because Little Sisters of the Poor joined the case to support the Trump administration’s proposed rule.

Becerra originally sued the federal government over expanding the exemption. The Little Sisters of the Poor, a nonprofit organization run by nuns that takes care of the elderly and has two locations in California, argued in district court in Oakland in December 2017 to join the lawsuit on behalf of the federal government.

The organization would be subject to fines if officials declined to provide contraceptives and Becerra won the case, they argued. The judge granted the request so they could participate in the case.

The administration of former President Barack Obama had mandated that employers provide coverage for contraceptives that does not include co-pays. Obama’s administration made an exception for religious employers in 2012, which it defined as having “the inculcation of religious values as its purpose,” employing “persons who share its religious tenets,” serving “persons who share its religious tenets” and is a nonprofit organization under federal law.

Little Sisters of the Poor serves people of all religious backgrounds, so they did not meet the third requirement under the Obama administration.

The Trump administration expanded that exemption in 2017, allowing any nonprofit or for-profit employer to seek an exemption on religious grounds. A moral objection can be made by nonprofits and companies that are not publicly traded. The exemption was also made available for religiously affiliated universities that provide health insurance to students.

That expansion prompted Becerra’s lawsuit, which the Little Sisters of the Poor later joined. So Becerra did not sue the Little Sisters of the Poor, but he did target a federal government exemption that — if it no longer applied to them — would have forced them to either cover contraceptives or pay fines.

Becerra argued to senators that he was not targeting nuns.

“We have to make sure we are providing the care that Americans are entitled to receive,” Becerra said. “We tried to make sure that, In California, under the Affordable Care Act, every Californian receives the benefits they’re entitled to under that Act.”

Trump’s administration eventually won a lawsuit over the question of religious exemptions for contraceptive coverage at the Supreme Court, which ruled 7-2 in July 2020 that the expanded religious exemption was constitutional.