The misleading claim that a Democratic candidate ‘sued’ a group of nuns for contraceptive coverage

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“When the government made sure that the Little Sisters of the Poor wouldn’t have to violate their religious beliefs, my opponent @JoshShapiroPA sued them and forced them to go to the Supreme Court. He lost and proved that it was too extreme for Pennsylvania.

— State Sen. Doug Mastriano, GOP candidate for governor of Pennsylvania, in a tweetJune 15

Time and again, Doug Mastriano has claimed that his Democratic opponent, Pennsylvania Attorney General Josh Shapiro, sued a group of nuns in an attempt to force them to “violate their religious beliefs.”

Catholics make up about a quarter of Pennsylvania’s population. They traditionally lean towards the Democrats, so this line of attack is aimed at undermining Shapiro’s position among Catholics.

We’ve come across a similar case before involving President Biden’s health and human services secretary, Xavier Becerra. He had served as California’s attorney general, and during his confirmation hearings he was also charged with prosecuting the Little Sistersa charity run by Catholic nuns serving poor elderly people.

It is a prime example of how a complex legal dispute is weaponized, through misleading rhetoric, for political gain.

Since the Affordable Care Act was passed in 2010, litigation has erupted over the law’s requirement that employers with more than 50 employees provide a preventive care package that includes contraceptive coverage.

The agency’s rulings initially created a three-tier system for religious employers, including a full waiver of the contraceptive mandate for churches and religious orders and “accommodation” for certain nonprofit religious employers. As part of the accommodation, these groups could refuse to purchase contraceptive coverage in list an objection with his insurer; workers and dependents would still get coverage, but organizations wouldn’t have to pay for it.

For-profit religious employers initially received no exemptions, but the Supreme Court in 2014 ruled that the warrant violated the Religious Freedom Restoration Act of 1993 if enforced against “closed” companies such as the Hobby Lobby craft store.

The court did not consider at the time whether the RFRA applied to employers, such as the Little Sisters, who were covered by the accommodation – a compromise that the group still deeply disliked as a burden on their religious rights. Little Sisters officials dismissed the opt-out document as a “permission slip” for forms of birth control the group deemed objectionable.

To complicate matters further, Little Sisters has a self-assured plan. Below provisions of the Employees Retirement Income Security Actthe federal government, in this casecannot apply the regulations even if the group files a notice of opposition to the contraception mandate.

By the time the issue reached the Supreme Court in 2016, Justice Antonin Scalia had died and there was no replacement, so the court appeared to be split 4-4. The court quashed the cases grouped together as Zubik vs. Burwell and tell the parties find a solution “that accommodates the petitioners’ religious exercise” by not requiring notice. “Because the government can rely on this notice, the government cannot impose taxes or penalties on petitioners for failing to provide the relevant notice,” the court said.

Then Donald Trump became president. His administration changed course and allowed any entity exercising a religious or moral exemption — even large, for-profit corporations — to deny contraceptive coverage. Meaning the politics involved, Trump guest representatives of the Little Sisters at a signing ceremony in 2017 of a decree calling for the development of new regulations.

Pennsylvania and California filed separate lawsuits, challenging the new policy as being too broad and allowing too many exemptions for businesses. “Previously, exceptions to this mandate were extremely limited,” Shapiro said. said announcing the trial. “Now, as a result of these new rules, virtually any employer can refuse to provide coverage for contraceptive services to their employees, who will now have to pay more for health care.”

The Pennsylvania case made it all the way to the Supreme Court, which ruled 7-2 that the Trump administration’s regulations were legally valid, though it was unclear whether the rules were “arbitrary and capricious”, as argued by Pennsylvania (joined by New Jersey). . This matter had to be taken to the lower courts.

So how did the Little Sisters get involved? They sued to intervene in the case. It is clearly indicated in the group Short to the Supreme Court: “Because Pennsylvania sought to strike down an exemption that the Little Sisters had long pursued and from which they would directly benefit, they decided to intervene.”

Indeed, the case before the Supreme Court was called Little Sisters of the Poor c. Commonwealth of Pennsylvania.

By the time the Pennsylvania case reached court, it had had many twists and turns. But Shapiro’s office has always maintained that the Little Sisters were unaffected. They “have already obtained a Supreme Court order exempting them from the contraceptive warrant and immunizing them from any ‘tax or penalty … for failing to provide the relevant notice,'” his office said in a 2017 court filing.

In 2019, a district judge imposed a preliminary injunction that “will maintain the status quo,” then a Colorado district court permanently enjoined enforcement of the Little Sisters health plans mandate. This led an appeals court to dismiss the Little Sisters as “no longer aggrieved” and lacking standing – prompting the group and the Trump administration to appeal to the Supreme Court.

During oral arguments before the Supreme Court, Shapiro’s office insisted that he did not target nuns, only the Trump administration.

“To be clear, we brought this action against the federal government,” Deputy Attorney General Mike Fischer said. told the court on May 6, 2020. “We did not challenge the Little Sisters. We did not contest their injunction from Colorado. They and all other parties to Zubik are protected by injunctions and do not have to comply with the contraceptive mandate whatever happens in this case.

At another point, Fisher noted, “Your Honor mentioned the Little Sisters. Their insurance company said they would not provide birth control no matter what. Or their health plan. And because it’s a church plan exempt from ERISA, the government can’t enforce it. So, even if they did not have their separate injunction, their employees would not receive contraception. We’re not trying to dispute that at all.

The majority opinion written by Judge Clarence Thomas, however, cast the Little Sisters as a litigant. “Over the past seven years, they – like many other religious objectors who participated in the litigation and the development of the rules that led to today’s decision – have had to fight to be able to continue their noble work. without violating their sincere religious beliefs”. he wrote. In a footnote, he said the appeals court erred in finding the Little Sisters lacked standing to sue.

“Pennsylvania did not prosecute the Little Sisters,” said Douglas Laycock, a law professor at the University of Virginia and an authority on religious freedom law. Shapiro “sued the federal government and the Little Sisters stepped in.”

“It is also true that the Little Sisters were part of a church plan, that church plans are exempt from a lot of regulation under ERISA (the Employee Retirement Income Security Act, which regulates benefits), and that the government has admitted that it cannot regulate them,” Laycock added. “Why employers with church plans were allowed to litigate the contraceptive warrant, not just in this case but in many other cases, is a mystery which, as far as I know, the Court has never explained. “

We sent a lengthy email outlining our analysis to a Mastriano campaign spokesperson. The campaign has a reputation for ignoring the media, and we got no response.

But Ryan Colbyspokesperson for the Becket Fund for Religious Liberty, which represented the Little Sisters, defended Mastriano’s rhetoric.

“Shapiro has filed a lawsuit,” Colby said in a statement. “He sued to remove religious protections given to the Little Sisters of the Poor and others, who were doing essential work caring for the elderly during the pandemic. He even told the courts that it would be unconstitutional to have protections for religious objectors. When the Little Sisters fought to protect their rights, Shapiro didn’t back down. And he’s actually still in court trying to take those protections away.

Colby did not respond to a request for clarification, but the last line was an apparent reference to Shapiro’s office ask a court to stay ongoing litigation as the Biden administration works to rewrite the rules again.

“Doug Mastriano is known for spending his time rejecting reality and peddling dangerous lies — and that’s just the latest example on his track record,” Shapiro campaign spokesman Manuel Bonder said in a statement. communicated. “Pennsylvania needs a governor who can focus on solving problems and making people’s lives better – not a governor who constantly puts conspiracy theories before facts.”

The Little Sisters have been a sympathetic and powerful face of opposition to ACA’s contraceptive mandate. But by the time Shapiro filed his lawsuit against the broad exemptions ordered by Trump, the group had essentially gotten what it wanted and was not subject to the warrant. Nonetheless, he sued to intervene, fearing that any backtracking from Trump’s rules could result in the loss of his exemption – even though Shapiro said that was not his intention.

The fact remains: the nuns sued to join in a case that targeted the federal government; Shapiro did not sue the nuns. Mastriano falsely claims otherwise. Given that the Little Sisters ended up pleading, we can’t really say it’s worthy of Four Pinocchios. But Mastriano wins three.

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