Gail Collins v. the Little Sisters: A Concurrence
Kathryn Lopez and Alexandra DeSanctis have both scorched Gail Collins’s attack on the Little Sisters of the Poor, and yet there is still more to say about how wrong it was. I’ll go through some of Collins’s errors and fatuities in the order they appeared in her column. I make no claim that my list is exhaustive.
1. Collins begins by spinning a hypothetical in which a group of nuns had a religious objection to cardiac care and refused to cover it for their employees. It would be absurd, she suggests, to allow this refusal.
In the past, people on Collins’s side of this argument have conjured hypothetical employers who refused to cover blood transfusions in line with the beliefs of Jehovah’s Witnesses or refused to cover health care at all following Christian Science tenets. No such actual cases have ever materialized, either in the pre–Obamacare mandate decades or in the years since the Supreme Court’s pro–religious liberty ruling in Hobby Lobby (2014). Perhaps that’s why we’ve moved on to wholly made-up religious beliefs.
But let’s take Collins’s hypothetical example more seriously than it deserves and think through what else would need to be true for it to be truly parallel to the cases we’ve actually been arguing about for the last eight years. In the full hypothetical, we would have had no mandate that cardiac care be covered for all of our history until recently. Then an administration would introduce that mandate but exempt the employers of tens of millions of people from it, often for reasons of administrative convenience, explaining to the Supreme Court (see p. 65) that these people would have plenty of sources of contraceptive coverage other than their employers. But it would simultaneously insist that the nuns who have a religious objection to the mandate should not get an exemption. And it would find no employee of theirs, in years of litigation, who expressed any concern about losing access to cardiac care.
Under these circumstances, it is hard to see how it could reasonably be maintained that making the nuns provide the coverage was the least restrictive means of furthering a compelling governmental interest — as the Religious Freedom Restoration Act requires. So even these hypothetical nuns might win their case, and deserve to.
2. “But the nuns didn’t want to let the government know what they weren’t doing. That counted as aiding and abetting the enemy, so they dug in their heels.”
This is simply false. The nuns were always perfectly willing to write the government to say they could not in good conscience comply with the HHS regulation, and the Obama administration and progressive states were never willing to accept anything less than their authorization of their insurance network’s provision of coverage for contraception (including contraception that the Obama administration conceded could act to kill human embryos) and sterilization. Justice Elena Kagan conceded in oral argument that the nuns “had no objection to objecting.”
3. “Now, other employers with religious scruples or simply a yen to save money will leap on the bandwagon.”
Collins may not realize it, but she is contradicting one of the key underpinnings of the legal campaign against the Little Sisters, which was that the coverage would not cost them anything. It was always a dubious contention, but abandon it and it becomes that much harder to pretend that the Little Sisters weren’t being asked to do anything that violates their faith.
4. “You have to admit the anticontraception forces were brilliant to get the Little Sisters of the Poor as their star in court.”
“Anticontraception forces” is a term of art here, meaning “forces that do not believe that parties with an objection to contraception should be dragooned into its provision.” It is understandable that progressives resent the PR problem of looking as though they are bullying a group of charitable nuns. One simple solution to the problem would have been for them to refrain from bullying nuns.
5. “Groups like Planned Parenthood refused to cooperate with the Trump rule that prohibited doctors from giving their patients information on abortion availability.”
There is no Trump rule that prohibits doctors from giving patients information on abortion availability. Doctors in federally funded family-planning programs are prohibited only from making abortion referrals, encouraging or discouraging abortion, or providing lists of abortion providers in the area. (They may, however, provide lists of facilities that include abortion providers.) They are allowed to provide counseling on abortion, too, so long as it is nondirective. The Times story to which Collins links, incidentally, gets the details right.
It is tempting to say that the case against the Little Sisters must be weak if this is the best effort it can make. The case is indeed weak. But what this column proves is that Collins is more interested in sneering about her subject than in learning anything about it.
